SCT Industri AB i likvidation v Alpenblume AB.
Date: 2009-07-02
20. In that regard, it should first of all be noted that, with regard in particular to bankruptcy and other similar proceedings, these were excluded from the scope of the Brussels Convention both on account of the special nature of the subject-matter concerned, which necessitates specific rules, and because of major differences between the legislation of the Contracting States (see, to that effect, Case 133/78 Gourdain  [1979] ECR 733, paragraph 3, and Report by Mr Jenard on the Brussels Convention (OJ 1979 C 59, p. 1)).
21. In its case-law relating to the Brussels Convention, the Court has thus held that an action is related to bankruptcy if it derives directly from the bankruptcy and is closely linked to proceedings for realising the assets or judicial supervision (see Gourdain , paragraph 4). An action with such characteristics does not, therefore, fall within the scope of that convention.
22. The case-law also indicates that, in so far as Regulation No 44/2001 now replaces the Brussels Convention in relations between the Member States, with the exception of the Kingdom of Denmark, an interpretation given by the Court concerning that convention also applies to the regulation, where its provisions and those of the Brussels Convention may be treated as equivalent (see, inter alia, Case C-180/06 Ilsinger [2009] ECR I-0000, paragraph 41).
23. In the scheme established by Regulation No 44/2001, Article 1(2)(b) of that regulation has the same position and performs the same role as point 2 of the second subparagraph of Article 1 of the Brussels Convention. Moreover, the wording of those two provisions is identical.
24. In view of such equivalence between a provision of the Brussels Convention and a provision of Regulation No 44/2001, it is necessary, in accordance with recital 19 in the preamble to the latter, to ensure continuity in the interpretation of those two instruments, as such continuity is also the means to ensure observance of the principle of legal certainty, which constitutes one of the cornerstones of those instruments ( Ilsinger , paragraph 58).
25. In the light of the foregoing it is therefore the closeness of the link, in the sense of the Gourdain  case-law, between a court action such as that at issue in the main proceedings 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.
28. In other words, the transfer at issue in the main proceedings and the action for restitution of title to which it gave rise, are the direct and indissociable consequence of the exercise by the liquidator – an individual who intervenes only after the insolvency proceedings have been opened – of a power which he derives specifically from the provisions of national law governing that type of proceedings.
33. In the light of all of the foregoing considerations, the answer to the question referred is that the exception provided for in Article 1(2)(b) of Regulation No 44/2001 must be interpreted as applying to a judgment of a court of Member State A regarding registration of ownership of shares in a company having its registered office in Member State A, according to which the transfer of those shares was to be regarded as invalid on the ground that the court of Member State A did not recognise the powers of a liquidator from a Member State B in the context of insolvency proceedings conducted and closed in Member State B.
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