Burgo Group SpA v Illochroma SA and Jérôme Theetten.
Date: 2014-09-04
27. In that context, under Article 16(1) of Regulation No 1346/2000, main proceedings in one Member State are to be recognised in all the other Member States from the time that they become effective in the State in which the proceedings were opened. That rule means that the courts of the other Member States are to recognise the judgment opening main proceedings, without being able to review the assessment made by the first court as to its jurisdiction (judgment in Bank Handlowy and Adamiak , C‑116/11, EU:C:2012:739, paragraph 41 and the case-law cited).
31. ‘Establishment’ is defined in Article 2(h) of Regulation No 1346/2000 as ‘any place of operations where the debtor carries out a non-transitory economic activity with human means and goods’. As the Court has already held, the fact that that definition links the pursuit of an economic activity to the presence of human resources shows that a minimum level of organisation and a degree of stability are required. It follows that, conversely, the presence alone of goods in isolation or bank accounts does not, in principle, satisfy the requirements for classification as an ‘establishment’ (judgment in Interedil , C‑396/09, EU:C:2011:671, paragraph 62).
36. In that regard, it should be noted, first, that while the protection afforded to local creditors is, admittedly, not the only objective underlying the possibility of requesting the opening of secondary proceedings, the fact remains that an interpretation such as that set out in paragraph 35 above would clearly be contrary to that primary objective of Regulation No 1346/2000, especially since, in general, it seems likely that ‘local’ interests worthy of the protection conferred by that regulation may indeed be present in the Member State in which the registered office of the debtor company concerned is situated, even if the centre of that company’s main interests is situated in another Member State.
46. However, when adopting national rules governing who is empowered to request the opening of secondary proceedings, the Member States are required, in accordance with settled case-law, to ensure that Regulation No 1346/2000 is effective, bearing in mind its object (see to that effect, inter alia, the judgment in Endress , C‑209/12, EU:C:2013:864, paragraph 23 and the case-law cited).
48. On the other hand, it is apparent from recitals 17 and 18 in the preamble to Regulation No 1346/2000 and from Article 3(2) and (4) thereof that a clear distinction is drawn by that regulation between territorial proceedings opened prior to the opening of main proceedings and secondary proceedings. It is only in relation to such territorial proceedings that the right to request the opening of proceedings is limited to creditors who have their domicile, habitual residence or registered office within the Member State in which the relevant establishment is situated, or whose claims arise from the operation of that establishment (see, to that effect, the judgment in Zaza Retail , C‑112/10, EU:C:2011:743, paragraph 30). It follows, a contrario , that those limitations do not apply to secondary proceedings.
49. Lastly, as regards, more specifically, the possibility of limiting the right to request the opening of secondary proceedings to local creditors, such a limitation would draw a distinction based on criteria liable to operate mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners. Such a distinction would constitute indirect discrimination on grounds of nationality, which, in accordance with settled case-law, is, in principle, prohibited (see, inter alia, the judgment in Commission v Italy , C‑388/01, EU:C:2003:30, paragraph 14 and the case-law cited).
57. The Spanish Government notes that, unlike the proceedings in the case giving rise to the judgment in Bank Handlowy and Adamiak  (EU:C:2012:739, paragraph 63), the main proceedings at issue in the present case are winding-up proceedings. Moreover, in Bank Handlowy and Adamiak , the Court did not refer to the option of whether or not to request the opening of secondary proceedings, but simply to the role of the court once secondary proceedings have been opened.
59. For the purpose of answering the third question, it should be borne in mind, first of all, that, under Article 27 of Regulation No 1346/2000, the opening of main proceedings means that it is possible to open secondary proceedings in another Member State, a court of which has jurisdiction pursuant to Article 3(2) of that regulation. As is apparent from the Court’s case-law, the opening of such proceedings is possible both where the main proceedings have a protective purpose and, a fortiori , where the main proceedings are winding-up proceedings (see, to that ef fect, the judgment in Bank Handlowy and Adamiak , EU:C:2012:739, paragraph 63).
64. However, it should be borne in mind in that context, first, that Member States must, when establishing the conditions to be met for secondary proceedings to be opened, comply with EU law and, in particular, its general principles as well as the provisions of Regulation No 1346/2000 (see, to that effect, the judgment in Deutsche Lufthansa , C‑109/09, EU:C:2011:129, paragraph 37 and the case-law cited). Accordingly, Member States cannot, inter alia, establish conditions for the opening of secondary proceedings which draw a distinction, in breach of the principle of non-discrimination, between creditors seeking the opening of such proceedings on the basis of their place of residence or registered office.