Bank Handlowy w Warszawie SA and PPHU ‘ADAX’/Ryszard Adamiak v Christianapol sp. z o.o.
Date: 2012-11-22
28. It should be observed that regard that the Court may at any moment, having heard the Advocate General, order the reopening of the oral procedure under Article 83 of its Rules of Procedure, inter alia if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties or the parties concerned referred to in Article 23 of the Statute of the Court of Justice (see, to that effect, in respect of Article 61 of the Rules of Procedure in the version thereof in force prior to 1 November 2012, order of 4 July 2012 in Case C‑62/11 Feyerbacher , paragraph 6 and the case‑law cited).
40. As noted by the referring court, those proceedings produce universal effects in that the proceedings apply to the debtor’s assets situated in all the Member States. As long as main insolvency proceedings are pending, no other main proceedings may be opened. Under Article 3(2) and (3) of the Regulation, any insolvency proceedings opened during that period may be only secondary and the effects thereof are restricted to the assets of the debtor situated in the territory of the Member State where those proceedings are opened (see, to that effect, Case C‑191/10 Rastelli Davide e C. [2011] ECR I‑13209, paragraph 15 and the case‑law cited).
41. Under Article 16(1) of the Regulation, main insolvency proceedings in one Member State are to be recognised in all the other Member States from the time that it becomes effective in the State of the opening of proceedings. That rule implies that the courts of the other Member States are to recognise the judgment opening main insolvency proceedings, without being able to review the assessment made by the first court as to its jurisdiction (see, to that effect, Case C‑341/04 Eurofood IFSC  [2006] ECR I‑3813, paragraphs 39 and 42, and also Case C‑444/07 MG Probud Gdynia  [2010] ECR I‑417, paragraphs 27 and 29). Article 25 of the Regulation extends that rule of recognition to all judgments relating to the conduct and closure of proceedings.
45. As the Court has observed, the Regulation is designed not to establish uniform proceedings on insolvency, but, as is apparent from recital 2 in the preamble thereto, to ensure that cross-border insolvency proceedings operate efficiently and effectively ( Eurofood IFSC , paragraph 48). To that end, it lays down rules on recognition and jurisdiction as well as rules on the applicable law in that area.
49. Although it is true that, where there are doubts with respect to their wording, provisions of European Union law must be given an autonomous and uniform interpretation, having regard to the context of the provision and the objective pursued by the legislation in question, the Court has nevertheless held that that principle holds true only for those provisions which make no express reference to the law of the Member States for the purpose of determining their meaning and scope (see, to that effect, Case C‑396/09 Interedil  [2011] ECR I‑9915, paragraph 42 and the case‑law cited).
51. This analysis is not contradicted by the fact that, in paragraph 54 of its judgment in Eurofood IFSC , relied on by Christianapol and the French Government, the Court held that the concept of ‘[judgment] opening insolvency proceedings’ under Article 16(1) of the Regulation must be defined by reference to two criteria specific to the Regulation. Unlike Article 4 of the Regulation, Article 16(1) does not make an express reference to national law, but lays down an immediately-applicable rule in the form of a principle that the first judgment opening proceedings is to be recognised.
59. As observed by the referring court, the fact remains that the opening of secondary proceedings, which, under Article 3(3) of the Regulation, must be winding-up proceedings, risks running counter to the purpose served by main proceedings, which are of a protective nature.
60. It should be noted that the Regulation provides for a certain number of mandatory rules of coordination intended to ensure, as expressed in recital 12 in the preamble thereto, the need for unity in the Community. In that system, the main proceedings have a dominant role in relation to the secondary proceedings, as stated in recital 20 in the preamble to the Regulation.
63. The answer to the third question is therefore that Article 27 of the Regulation must be interpreted as meaning that it permits the opening of secondary insolvency proceedings in the Member State in which the debtor has an establishment, where the main proceedings have a protective purpose. It is for the court having jurisdiction to open secondary proceedings to have regard to the objectives of the main proceedings and to take account of the scheme of the Regulation, in keeping with the principle of sincere cooperation.
The second question
67. In those circumstances, the wording used in the first sentence of Article 27 of the Regulation must be construed in the light of the overall scheme and purpose of the Regulation of which it forms a part (see, to that effect, Case 803/79 Roudolff  [1980] ECR 2015, paragraph 7).