Simona Kornhaas v Thomas Dithmar als Insolvenzverwalter über das Vermögen der Kornhaas Montage und Dienstleistung Ltd.
Date: 2015-12-10
15. In that context, the Court has previously held that Article 3(1) of Council Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction, on the basis of that provision, to hear and determine an action brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets (judgment in H , C‑295/13, EU:C:2014:2410, paragraph 26).
16. The Court has based that decision on the view, in particular, that a national provision, such as the first sentence of Paragraph 64(2) of the GmbHG, under which the managing director of an insolvent company must reimburse the payments which he made on behalf of that company after it became insolvent, derogates from the common rules of civil and commercial law, because of the insolvency of that company. It infers therefrom that an action based on that provision, brought in the context of insolvency proceedings, is an action deriving directly from insolvency proceedings and closely connected with them (see, to that effect, judgment in H , C‑295/13, EU:C:2014:2410, paragraphs 23 and 24).
17. Consequently, even if, in the judgment in H  (C‑295/13, EU:C:2014:2410), the Court’s answer to the request for a preliminary ruling concerned Article 3 of Regulation No 1346/2000 and the international jurisdiction of a national court to rule on an action based on a provision of national law such as the first sentence of Paragraph 64(2) of the GmbHG, it nevertheless clearly categorised such a provision of national law as being covered by insolvency law. It follows that Paragraph 64(2) of the GmbHG must be regarded as being covered by the law applicable to insolvency proceedings and their effects, within the meaning of Article 4(1) of Regulation No 1346/2000. As such, that provision of national law, one of the effects of which is to require, if necessary, the managing director of a company to reimburse any payments which he made on behalf of that company after it became insolvent, may, in accordance with Article 4(1) of Regulation No 1346/2000, be applied by the national court hearing the insolvency proceedings as the law of the Member State within the territory of which the insolvency proceedings are opened (‘the lex fori concursus ’).
19. Article 4(2) of Regulation No 1346/2000 provides, in particular, that the lex fori concursus  determines the ‘conditions for the opening’ of the insolvency proceedings. In order to ensure the effectiveness of that provision, it must be interpreted as meaning that, first, the preconditions for the opening of insolvency proceedings, second, the rules which designate the persons who are obliged to request the opening of those proceedings and, third, the consequences of an infringement of that obligation fall within its scope. Consequently, national provisions such as Paragraph 64(1) and the first sentence of Paragraph 64(2) of the GmbHG, which have the effect, in essence, of penalising a failure to fulfil the obligation to apply for the opening of insolvency proceedings, must be considered, from that perspective, too, to fall within the scope of Article 4 of Regulation No 1346/2000.
23. In that regard, it follows from the case-law of the Court that, in some circumstances, the refusal by one Member State to recognise the legal capacity of a company formed in accordance with the law of another Member State in which it has its registered office on the ground, in particular, that the company has moved its actual centre of administration to its territory may constitute a restriction of freedom of establishment incompatible, in principle, with Article 49 TFEU and Article 54 TFEU (see, to that effect, judgment in Überseering , C‑208/00, EU:C:2002:632, paragraph 82).
24. The Court has also found before that, to the extent that national provisions concerning minimum capital are incompatible with freedom of establishment, as guaranteed by the Treaty, the same must necessarily be true of the penalties attached to non-compliance with those obligations, such as the personal joint and several liability of directors where the amount of capital does not reach the minimum provided for by the national legislation or where during the company’s activities it falls below that amount (see, to that effect, judgment in Inspire Art , C‑167/01, EU:C:2003:512, paragraph 141).