Rastelli Davide e C. Snc v Jean-Charles Hidoux.
Date: 2011-12-15
15. With regard to judicial competence, the Regulation provides, in Article 3, that two criteria correspond to two different types of proceedings. According to paragraph 1 of that article, the centre of the debtor’s main interests, presumed to be the place of the company’s registered office, gives jurisdiction to the courts of the Member State in which it is situated to initiate the ‘main’ proceedings, which produce universal effects in that the proceedings apply to the debtor’s assets situated in all the Member States in which the Regulation applies. Under Article 3(2) ‘secondary’ or ‘territorial’ proceedings may be opened by the courts of the Member State where the debtor has an establishment, the effects of which are restricted to the assets of the debtor situated in the territory of that Member State (see, to that effect, Case C‑341/04 Eurofood IFSC  [2006] ECR I‑3813, paragraph 28, and Case C‑112/10 Zaza Retail  [2011] ECR I-0000, paragraph 17).
16. With regard to the applicable law, Article 4(1) of the Regulation provides that this is dependent on the determination of the court with international jurisdiction. In relation to both the main insolvency proceedings and to the ‘secondary’ or ‘territorial’ proceedings, the law of the Member State in which the proceedings are opened is applicable to those insolvency proceedings and to their effects (see, to that effect Eurofood IFSC , paragraph 33, and Case C-444/07 MG Probud Gdynia [2010] ECR I‑417, paragraph 25).
18. In that regard, it does not seem to have been argued that Rastelli has in France an establishment within the meaning of the case-law of the Court, namely a structure with a minimum level of organisation and a degree of stability for the purpose of pursuing an economic activity (Case C-396/09 Interedil [2011] ECR I-0000, paragraph 64). In these circumstances Article 3(2) of the Regulation is not applicable.
20. In that context, it should be noted that the Court has held that Article 3(1) of the Regulation must be interpreted as meaning that it also confers international jurisdiction on the courts of the Member State within the territory of which insolvency proceedings were opened to hear an action which derives directly from the initial insolvency proceedings and which is closely connected with them, within the meaning of recital 6 in the preamble to the Regulation (Case C‑339/07 Seagon [2009] ECR I‑767, paragraphs 19 to 21). It must therefore be examined whether an application for joinder of insolvency proceedings on the ground that property has been intermixed can be deemed to be such an action.
25. The Court has held that in the system established by the Regulation for determining the competence of the Member States, which is based on the centre of the debtor’s main interests, each debtor constituting a distinct legal entity is subject to its own court jurisdiction ( Eurofood IFSC , paragraph 30).
27. In that regard, it should be noted that Article 3(1) of the Regulation confers exclusive jurisdiction to open such proceedings on the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated.
31. It should be noted at the outset that the term ‘the centre of a debtor’s main interests’, within the meaning of Article 3(1) of the Regulation, is a concept that is peculiar to the Regulation, thus having an autonomous meaning, and must therefore be interpreted in a uniform way, independently of national legislation ( Eurofood IFSC , paragraph 31, and Interedil , paragraph 43). While the Regulation does not define that concept, guidance as to its scope is, nevertheless, to be found in recital 13 in the preamble to the Regulation, which states that ‘the “centre of main interests” should correspond to the place where the debtor conducts the administration of his interests on a regular basis and [which] is therefore ascertainable by third parties’ ( Eurofood IFSC , paragraph 32, and Interedil , paragraph 47).
32. For companies, the centre of main interests is presumed, according to the second sentence of Article 3(1) of the Regulation, to be the place of the company’s registered office. That presumption and the reference in recital 13 in the preamble to the Regulation to the place where the debtor conducts the administration of his interests reflect the European Union legislature’s intention to attach greater importance to the place in which the company has its central administration as the criterion for jurisdiction ( Interedil , paragraph 48).
33. With reference to that recital, the Court held that the centre of a debtor’s main interests must be identified by reference to criteria that are both objective and ascertainable by third parties, in order to ensure legal certainty and foreseeability concerning the determination of the court with jurisdiction to open the main insolvency proceedings ( Eurofood IFSC , paragraph 33, and Interedil , paragraph 49).
34. With regard to a company, the Court held that, where the bodies responsible for its management and supervision are in the same place as its registered office and the management decisions of the company are taken, in a manner that is ascertainable by third parties, in that place, the presumption in the second sentence of Article 3(1) of the Regulation is wholly applicable ( Interedil , paragraph 50).
35. That presumption may be rebutted where, from the viewpoint of third parties, the place in which a company’s central administration is located is not the same as that of its registered office. In that event, the simple presumption laid down by the European Union legislature in favour of the registered office of that company can be rebutted 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 locating it at that registered office is deemed to reflect ( Eurofood IFSC , paragraph 34, and Interedil , paragraph 51).
36.  Those factors must be assessed in a comprehensive manner, account being taken of the individual circumstances of each particular case ( Interedil , paragraph 52).