Case C-341/04: Judgment of the Court (Grand Chamber) Chamber) of  2 May 2006  (reference for a preliminary ruling from the Supreme Court (Ireland)) Eurofood IFCS Ltd — Enrico Bondi v Bank of America N.A., Pearse Farrell, Official Liquidator, Director of Corporate Enforcement, Certificate/Note holders (Judicial cooperation in civil matters — Regulation (EC) No 1346/2000 — Insolvency proceedings — Decision to open the proceedings — Centre of the debtor's main interests — Recognition of insolvency proceedings — Public policy (keywords)
Date: 2006-06-17
Institutions: Court of Justice
Subjects: EU law - national law, Ireland, financial solvency, interpretation of the law, judicial proceedings, jurisdiction, liquidation

17.6.2006

EN

Official Journal of the European Union

C 143/11

Operative part of the judgment

The first subparagraph of Article 11(1) of Commission Regulation
(EEC) No 3665/87 of 27 November 1987 laying down common
detailed rules for the application of the system of export refunds on
agricultural products, as amended by Commission Regulation No
2945/94 of 2 December 1994, must be interpreted as meaning
in an appeal against a decision imposing a sanction on the
that,
basis of that provision, the national authorities and courts are entitled
to examine whether the exporter requested a refund in excess of that
applicable within the meaning of that provision, notwithstanding the
fact
that a reimbursement decision provided for in the first sub-
paragraph of Article 11(3) of that Regulation has become final before
the decision imposing a sanction was issued.

(1) OJ C 228, 11.9.2004

Judgment of the Court (Grand Chamber) Chamber) of 2
May 2006 (reference for a preliminary ruling from the
Supreme Court (Ireland)) Eurofood IFCS Ltd — Enrico
Bondi v Bank of America N.A., Pearse Farrell, Official
Liquidator, Director of Corporate Enforcement, Certifi-
cate/Note holders

(Case C-341/04) (1)

(Judicial cooperation in civil matters — Regulation (EC)
No 1346/2000 — Insolvency proceedings — Decision to open
the proceedings — Centre of the debtor's main interests —
insolvency proceedings — Public policy
Recognition of

(keywords)

(2006/C 143/20)

Language of the case: English

Referring court

Supreme Court (Ireland)

Parties to the main proceedings

Applicant: Enrico Bondi

Defendant(s): Bank of America N.A., Pearse Farrell, Official
Liquidator, Director of Corporate Enforcement, Certificate/Note
holders

Re:

Interpretation of Articles 1, 2, 3 and 16 of Council Regulation
(EC) No 1346/2000 of 29 May 2000 on insolvency proceed-

ings — Order appointing a provisional
liquidator pending a
final order — Whether that order may be regarded as a judg-
ment opening insolvency proceedings — Court with jurisdic-
tion to open insolvency proceedings

Operative part of the judgment

1. Where a debtor is a subsidiary company whose registered office
and that of
its parent company are situated in two different
Member States, the presumption laid down in the second sentence
of Article 3(1) of Council Regulation (EC) No 1346/2000 of 29
May 2000 on insolvency proceedings, whereby the centre of main
interests of that subsidiary is situated in the Member State where
its registered office is situated, can be rebutted only if factors which
are both objective and ascertainable by third parties enable it to be
established that an actual situation exists which is different from
that which location at that registered office is deemed to reflect.
That could be so in particular in the case of a company not
carrying out any business in the territory of the Member State in
which its
situated. By contrast, where a
company carries on its business in the territory of the Member
State where its registered office is situated, the mere fact that its
economic choices are or can be controlled by a parent company in
another Member State is not enough to rebut the presumption laid
down by that Regulation.

registered office

is

2. On a proper interpretation of the first subparagraph of Article
16(1) of Regulation No 1346/2000,
the main insolvency
proceedings opened by a court of a Member State must be recog-
nised by the courts of the other Member States, without the latter
being able to review the jurisdiction of the court of the opening
State.

3. On a proper interpretation of the first subparagraph of Article
16(1) of the Regulation, a decision to open insolvency proceedings
for the purposes of that provision is a decision handed down by a
court of a Member State to which application for such a decision
has been made, based on the debtor's insolvency and seeking the
opening of proceedings referred to in Annex A to the Regulation,
where that decision involves the divestment of the debtor and the
appointment of a liquidator referred to in Annex C to the Regu-
lation. Such divestment implies that the debtor loses the powers of
management that he has over his assets.

4. On a proper interpretation of Article 26 of the Regulation, a
Member State may refuse to recognise insolvency proceedings
opened in another Member State where the decision to open the
proceedings was taken in flagrant breach of the fundamental right
to be heard, which a person concerned by such proceedings enjoys.

(1) OJ C 251, 9.10.2004.