Henri Gourdain v Franz Nadler.
Date: 1979-02-22
3THE CONVENTION , THE PARTICULAR AIM OF WHICH IS TO SECURE THE SIMPLIFICATION OF FORMALITIES GOVERNING THE RECIPROCAL RECOGNITION AND ENFORCEMENT OF JUDGMENTS OF COURTS AND TRIBUNALS AND TO STRENGTHEN IN THE COMMUNITY THE LEGAL PROTECTION OF PERSONS WHO ARE ESTABLISHED THERE HAS LAID DOWN AS A MATTER OF PRINCIPLE THAT ITS SCOPE INCLUDES ' ' CIVIL AND COMMERCIAL MATTERS ' '  WITHOUT HOWEVER DEFINING THIS EXPRESSION .

HOWEVER BECAUSE OF THE SPECIAL NATURE OF CERTAIN MATTERS AND OF THE PROFOUND DIFFERENCES BETWEEN THE LAWS OF THE CONTRACTING STATES THE CONVENTION DOES NOT APPLY TO CERTAIN FIELDS INCLUDING ' ' BANKRUPTCY , PROCEEDINGS RELATING TO THE WINDING-UP OF INSOLVENT COMPANIES OR OTHER LEGAL PERSONS , JUDICIAL ARRANGEMENTS , COMPOSITIONS AND ANALOGOUS PROCEEDINGS ' '  WITHOUT THE MEANING OF THESE CONCEPTS BEING DEFINED EITHER .

AS ARTICLE 1 SERVES TO INDICATE THE SCOPE OF THE CONVENTION IT IS NECESSARY , IN ORDER TO ENSURE , AS FAR AS POSSIBLE , THAT THE RIGHTS AND OBLIGATIONS WHICH DERIVE FROM IT FOR THE CONTRACTING STATES AND THE PERSONS TO WHOM IT APPLIES ARE EQUAL AND UNIFORM , THAT THE TERMS OF THAT PROVISION SHOULD NOT BE INTERPRETED AS A MERE REFERENCE TO THE INTERNAL LAW OF ONE OR OTHER OF THE STATES CONCERNED .

BY PROVIDING THAT THE CONVENTION SHALL APPLY ' ' WHATEVER THE NATURE OF THE COURT OR TRIBUNAL ' '  THE FIRST PARAGRAPH OF ARTICLE 1 SHOWS THAT THE CONCEPT OF ' ' CIVIL AND COMMERCIAL MATTERS ' '  CANNOT BE INTERPRETED SOLELY IN THE LIGHT OF THE DIVISION OF JURISDICTION BETWEEN THE VARIOUS TYPES OF COURTS EXISTING IN CERTAIN STATES .

THE CONCEPTS USED IN ARTICLE 1 MUST BE REGARDED AS INDEPENDENT CONCEPTS WHICH MUST BE INTERPRETED BY REFERENCE , FIRST , TO THE OBJECTIVES AND SCHEME OF THE CONVENTION AND , SECONDLY , TO THE GENERAL PRINCIPLES WHICH STEM FROM THE CORPUS OF THE NATIONAL LEGAL SYSTEMS .
4AS FAR AS CONCERNS BANKRUPTCY , PROCEEDINGS RELATING TO THE WINDING-UP OF INSOLVENT COMPANIES OR OTHER LEGAL PERSONS , JUDICIAL ARRANGEMENTS , COMPOSITIONS AND ANALOGOUS PROCEEDINGS , ACCORDING TO THE VARIOUS LAWS OF THE CONTRACTING PARTIES RELATING TO DEBTORS WHO HAVE DECLARED THEMSELVES UNABLE TO MEET THEIR LIABILITIES , INSOLVENCY OR THE COLLAPSE OF THE DEBTOR ' S CREDITWORTHINESS , WHICH INVOLVE THE INTERVENTION OF THE COURTS CULMINATING IN THE COMPULSORY ' ' LIQUIDATION DES BIENS ' '  IN THE INTEREST OF THE GENERAL BODY OF CREDITORS OF THE PERSON , FIRM OR COMPANY , OR AT LEAST IN SUPERVISION BY THE COURTS , IT IS NECESSARY , IF DECISIONS RELATING TO BANKRUPTCY AND WINDING-UP ARE TO BE EXCLUDED FROM THE SCOPE OF THE CONVENTION , THAT THEY MUST DERIVE DIRECTLY FROM THE BANKRUPTCY OR WINDING-UP AND BE CLOSELY CONNECTED WITH THE PROCEEDINGS FOR THE ' ' LIQUIDATION DES BIENS ' '  OR THE ' ' REGLEMENT JUDICIAIRE ' ' .

IN ORDER TO ANSWER THE QUESTION REFERRED TO THE COURT BY THE NATIONAL COURT IT IS THEREFORE NECESSARY TO ASCERTAIN WHETHER THE LEGAL FOUNDATION OF AN APPLICATION SUCH AS THAT PROVIDED FOR IN ARTICLE 99 OF THE FRENCH LAW IS BASED ON THE LAW RELATING TO BANKRUPTCY AND WINDING-UP AS INTERPRETED FOR THE PURPOSES OF THE CONVENTION .
5THE APPLICATION UNDER ARTICLE 99 , CALLED AN APPLICATION TO MAKE GOOD A DEFICIENCY IN THE ASSETS , FOR WHICH SPECIAL PROVISION IS MADE IN A LAW ON BANKRUPTCY AND WINDING-UP IS MADE ONLY TO THE COURT WHICH MADE THE ORDER FOR THE ' ' REGLEMENT JUDICIAIRE ' '  OR THE ' ' LIQUIDATION DES BIENS ' ' .

IT IS ONLY THE ' ' SYNDIC ' '  - APART FROM THE COURT WHICH CAN MAKE THE ORDER OF ITS OWN MOTION - WHO CAN MAKE THIS APPLICATION ON BEHALF OF AND IN THE INTEREST OF THE GENERAL BODY OF CREDITORS WITH A VIEW TO THE PARTIAL REIMBURSEMENT OF THE CREDITORS BY RESPECTING THE PRINCIPLE THAT THEY RANK EQUALLY AND BY TAKING ACCOUNT OF ANY PREFERENTIAL RIGHTS LAWFULLY ACQUIRED .

IN THIS APPLICATION , WHICH DEROGATES FROM THE GENERAL RULES OF THE LAW OF LIABILITY , THE DE JURE OR DE FACTO MANAGERS OF THE COMPANY ARE PRESUMED TO BE LIABLE AND THEY CAN ONLY DISCHARGE THIS BURDEN BY PROVING THAT THEY MANAGED THE AFFAIRS OF THE COMPANY WITH ALL THE REQUISITE ENERGY AND DILIGENCE .

THE PERIOD OF LIMITATION OF THREE YEARS FOR THE APPLICATION RUNS FROM THE DATE WHEN THE FINAL LIST OF CLAIMS IS DRAWN UP AND IS SUSPENDED FOR THE DURATION OF ANY SCHEME OF ARRANGEMENT WHICH MAY HAVE BEEN ENTERED INTO AND BEGINS TO RUN AGAIN IF SUCH A SCHEME IS TERMINATED OR DECLARED VOID .

IF THE APPLICATION DIRECTED AGAINST THE MANAGER OF THE COMPANY SUCCEEDS IT IS THE GENERAL BODY OF CREDITORS WHICH BENEFITS , SOME ASSETS BEING ADDED TO THE FUNDS TO WHICH THEY ARE ENTITLED , AS HAPPENS WHERE THE ' ' SYNDIC ' '  ESTABLISHES A CLAIM WHICH BENEFITS THE GENERAL BODY OF CREDITORS .

FURTHERMORE , THE COURT MAY ORDER THE ' ' REGLEMENT JUDICIAIRE ' '  OR THE ' ' LIQUIDATION DES BIENS ' '  OF THOSE MANAGERS WHO HAVE BEEN MADE RESPONSIBLE FOR PART OR ALL OF THE LIABILITIES OF A LEGAL PERSON AND WHO DO NOT DISCHARGE THE SAID LIABILITIES , WITHOUT HAVING TO VERIFY WHETHER THE SAID MANAGERS ARE BUSINESS MEN AND WHETHER THEY ARE UNABLE TO MEET THEIR LIABILITIES .
6IT IS QUITE APPARENT FROM ALL THESE FINDINGS THAT THE LEGAL FOUNDATION OF ARTICLE 99 , THE OBJECT OF WHICH , IN THE EVENT OF THE WINDING-UP OF A COMMERCIAL COMPANY , IS TO GO BEYOND THE LEGAL PERSON AND PROCEED AGAINST ITS MANAGERS AND THEIR PROPERTY IS BASED SOLELY ON THE PROVISIONS OF THE LAW OF BANKRUPTCY AND WINDING-UP AS INTERPRETED FOR THE PURPOSE OF THE CONVENTION .

A DECISION SUCH AS THAT OF A FRENCH CIVIL COURT BASED ON ARTICLE 99 OF THE FRENCH LAW NO 67-563 OF 15 JULY 1967 ORDERING THE DE FACTO MANAGER OF A LEGAL PERSON TO PAY A CERTAIN SUM INTO THE ASSETS OF A COMPANY MUST BE CONSIDERED AS GIVEN IN THE CONTEXT OF BANKRUPTCY , PROCEEDINGS RELATING TO THE WINDING-UP OF INSOLVENT COMPANIES OR OTHER LEGAL PERSONS OR ANALOGOUS PROCEEDINGS WITHIN THE MEANING OF SUBPARAGRAPH 2 OF THE SECOND PARAGRAPH OF ARTICLE 1 OF THE CONVENTION .