Wiemer & Trachte GmbH v Zhan Oved Tadzher.
Date: 2018-11-14
23


Article 3(1) of Regulation No 1346/2000 confers exclusive jurisdiction to open the main insolvency proceedings on the courts of the Member State within the territory of which the centre of the debtor’s interests is situated (judgment of 15 December 2011, Rastelli Davide e C., C‑191/10, EU:C:2011:838, paragraph 27).
24


For the purpose of determining whether or not an action falls within the scope of that provision, the Court stated that it was necessary to take into account recital 6 of Regulation No 1346/2000, according to which that regulation should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings (see, to that effect, judgments of 12 February 2009, Seagon, C‑339/07, EU:C:2009:83, paragraph 20, and of 19 April 2012, F-Tex, C‑213/10, EU:C:2012:215, paragraph 26).
25


The Court deduced that, taking into account the objective of the legislature as set out in that recital and the effectiveness of Regulation No 1346/2000, Article 3(1) thereof must be interpreted as meaning that it also confers on the courts of the Member State which has jurisdiction to open insolvency proceedings international jurisdiction to hear and determine actions which derive directly from those proceedings and which are closely connected with them (see, to that effect, judgments of 12 February 2009, Seagon, C‑339/07, EU:C:2009:83, paragraph 21, and of 19 April 2012, F-Tex, C‑213/10, EU:C:2012:215, paragraph 27).
26


Having regard to, inter alia, those considerations, the Court has previously held that actions to set a transaction aside, the aim of which is to add to the assets of the undertaking subject to insolvency proceedings, fall within that category. Article 3(1) of Regulation No 1346/2000 must therefore be interpreted as meaning that the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction to decide an action to set a transaction aside by virtue of insolvency that is brought against a person whose registered office is in another Member State (judgment of 12 February 2009, Seagon, C‑339/07, EU:C:2009:83, paragraph 28).
29


That regulation and Regulation No 1346/2000 must be interpreted in such a way as to avoid any overlap between the rules of law laid down by those texts or any legal vacuum. Accordingly, actions excluded, under Article 1(2)(b) of Regulation No 44/2001, from the scope of that regulation fall within the scope of Regulation No 1346/2000. Correspondingly, actions which fall outside the scope of Article 3(1) of Regulation No 1346/2000 fall within the scope of Regulation No 44/2001 (see, to that effect, judgment of 9 November 2017, Tünkers France and Tünkers Maschinenbau, C‑641/16, EU:C:2017:847, paragraph 17 and the case-law cited).
30


In that regard, the Court has stated that Regulation No 44/2001 is intended to apply to all civil and commercial matters apart from certain well-defined matters, and that Article 1(2)(b) of that regulation excludes from its scope only actions which derive directly from the insolvency proceedings and are closely connected with them, which are covered by Regulation No 1346/2000 (see, to that effect, judgment of 19 April 2012, F-Tex, C‑213/10, EU:C:2012:215, paragraph 29).
31


It follows that the scope of each of those two regulations relating to the international jurisdiction of the courts of the Member States is clearly defined and that an action to set a transaction aside, where it derives directly from the insolvency proceedings and is closely connected with them, falls within the scope of Regulation No 1346/2000 and not that of Regulation No 44/2001.
33


Moreover, the Court has previously held that concentrating all the actions directly related to insolvency before the courts of the Member State with jurisdiction to open insolvency proceedings is consistent with the objective of improving the effectiveness and efficiency of insolvency proceedings having cross-border effects, referred to in recitals 2 and 8 of Regulation No 1346/2000 (judgment of 12 February 2009, Seagon, C‑339/07, EU:C:2009:83, paragraph 22).
34


In addition, it should be noted that, according to recital 4 of that regulation, it is necessary for the proper functioning of the internal market to avoid incentives for the parties to transfer assets or judicial proceedings from one Member State to another, seeking to obtain a more favourable legal position (forum shopping) (judgment of 12 February 2009, Seagon, C‑339/07, EU:C:2009:83, paragraph 23).
35


The possibility for more than one court to exercise jurisdiction as regards actions to set a transaction aside by virtue of insolvency brought in various Member States would undermine the pursuit of such an objective (judgment of 12 February 2009, Seagon, C‑339/07, EU:C:2009:83, paragraph 24).
36


It follows from the foregoing that the courts of the Member State within the territory of which insolvency proceedings have been opened, as referred to in Article 3(1) of Regulation No 1346/2000, enjoy exclusive jurisdiction to hear actions which derive directly from those proceedings and are closely connected with them, and thus to hear actions to set a transaction aside based on insolvency.
42


As the Advocate General notes in point 65 of his Opinion, that provision covers only the recognition and enforceability of judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court. That provision merely allows for the possibility that the courts of a Member State within the territory of which insolvency proceedings have been opened pursuant to Article 3(1) of Regulation No 1346/2000 may also hear and determine an action deriving directly from those proceedings, whether that be the court which opened the insolvency proceedings under that provision, or another court of that same Member State having territorial and substantive jurisdiction (see, to that effect, judgment of 12 February 2009, Seagon, C‑339/07, EU:C:2009:83, paragraphs 26 and 27).