NK v BNP Paribas Fortis NV.
Date: 2019-02-06
24


In this respect, it should be noted that, relying in particular on the preparatory documents relating to the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (‘the Brussels Convention’), which was replaced by Regulation No 44/2001, the Court has held that that regulation and Regulation No 1346/2000 must be interpreted in such a way as to avoid any overlap between the rules of law that those texts lay down and any legal vacuum. Accordingly, actions excluded under Article 1(2)(b) of Regulation No 44/2001 from the scope of that regulation because they come under ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ fall within the scope of Regulation No 1346/2000. Conversely, actions which fall outside the scope of Article 3(1) of Regulation No 1346/2000 fall within the scope of Regulation No 44/2001 (judgment of 9 November 2017, Tünkers France and Tünkers Maschinenbau, C‑641/16, EU:C:2017:847, paragraph 17).
25


The Court also noted that, as stated inter alia in recital 7 of Regulation No 44/2001, the intention of the EU legislature was to provide for a broad definition of the concept of ‘civil and commercial matters’ in Article 1(1) of that regulation, and consequently to provide that the regulation should be broad in its scope. By contrast, the scope of Regulation No 1346/2000, in accordance with recital 6 of that regulation, should not be broadly interpreted (judgment of 9 November 2017, Tünkers France and Tünkers Maschinenbau, C‑641/16, EU:C:2017:847, paragraph 18).
26


The Court has held that only actions which derive directly from insolvency proceedings or which are closely connected with them are excluded from the scope of the Brussels Convention and, subsequently, Regulation No 44/2001 (see, to that effect, judgments of 22 February 1979, Gourdain, 133/78, EU:C:1979:49, paragraph 4, and of 19 April 2012, F-Tex, C‑213/10, EU:C:2012:215, paragraphs 22 and 24). Consequently, only those actions, as described, fall within the scope of Regulation No 1346/2000 (see, to that effect, judgment of 9 November 2017, Tünkers France and Tünkers Maschinenbau, C‑641/16, EU:C:2017:847, paragraph 19 and the case-law cited).
28


The decisive criterion adopted by the Court to identify the area within which an action falls is not the procedural context of which that action is part, but the legal basis of the action. According to that approach, it must be determined whether the right or obligation which forms the basis of the action has its source in the ordinary rules of civil and commercial law or in derogating rules specific to insolvency proceedings (judgments of 4 September 2014, Nickel & Goeldner Spedition, C‑157/13, EU:C:2014:2145, paragraph 27; of 9 November 2017, Tünkers France and Tünkers Maschinenbau, C‑641/16, EU:C:2017:847, paragraph 22; and of 20 December 2017, Valach and Others, C‑649/16, EU:C:2017:986, paragraph 29).
29


First, the fact that, after the opening of insolvency proceedings, a claim is brought by the liquidator appointed in those proceedings and that he acts in the interests of the creditors does not substantially amend the nature of the claim, which is independent from the insolvency proceedings and remains subject, in terms of the substance of the matter, to the rules of ordinary law (see, by analogy, judgments of 10 September 2009, German Graphics Graphische Maschinen, C‑292/08, EU:C:2009:544, paragraphs 31 and 33, and of 4 September 2014, Nickel & Goeldner Spedition, C‑157/13, EU:C:2014:2145, paragraph 29).
30


Secondly, according to the case-law of the Court, it is the closeness of the link between a court action and the insolvency proceedings that is decisive for the purposes of deciding whether the exclusion in Article 1(2)(b) of Regulation No 44/2001 is applicable (judgment of 9 November 2017, Tünkers France and Tünkers Maschinenbau, C‑641/16, EU:C:2017:847, paragraph 28 and the case-law cited).
36


In those circumstances, as noted by the Advocate General in point 68 of his Opinion, an action such as that at issue in the main proceedings, which may be brought by the creditor himself, so that it does not fall under the exclusive competence of the liquidator, and is independent of the opening of insolvency proceedings, cannot be considered a direct and inherent result of those proceedings.