Tünkers France and Tünkers Maschinenbau GmbH v Expert France.
Date: 2017-11-09
17


In this respect, it should be noted that, relying inter alia on the preparatory documents relating to the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36) (‘the Brussels Convention’), which was replaced by Regulation No 44/2001, the Court has held that that regulation and Regulation No 1346/2000 must be interpreted in such a way as to avoid any overlap between the rules of law that those texts lay down and any legal vacuum. Accordingly, actions excluded, under Article 1(2)(b) of Regulation No 44/2001, from the application of that regulation in so far as they come under ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ 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 (judgment of 4 September 2014, Nickel & Goeldner Spedition, C‑157/13, EU:C:2014:2145, paragraph 21 and the case-law cited).
18


The Court also noted, as stated inter alia in recital 7 of Regulation No 44/2001, that the intention on the part of the EU legislature was to provide for a broad definition of the concept of ‘civil and commercial matters’ referred to in Article 1(1) of that regulation and, consequently, to provide that the article should be broad in its scope. By contrast, the scope of application of Regulation No 1346/2000, in accordance with recital 6 thereof, should not be broadly interpreted (judgment of 4 September 2014, Nickel & Goeldner Spedition, C‑157/13, EU:C:2014:2145, paragraph 22).
19


Applying those principles, the Court has found that only actions which derive directly from insolvency proceedings and are closely connected with them are excluded from the scope of Regulation No 44/2001. Consequently, only those actions fall within the scope of Regulation No 1346/2000 (see judgment of 4 September 2014, Nickel & Goeldner Spedition, C‑157/13, EU:C:2014:2145, paragraph 23).
22


As regards the first criterion, it must be recalled that, in order to determine whether an action derives directly from insolvency proceedings, the decisive criterion adopted by the Court to identify the area within which an action falls is not the procedural context of which that action is part, but the legal basis thereof. According to that approach it must be determined whether the right or the obligation which forms the basis of the action has its source in the ordinary rules of civil and commercial law or in derogating rules specific to insolvency proceedings (judgment of 4 September 2014, Nickel & Goeldner Spedition, C‑157/13, EU:C:2014:2145, paragraph 27).
24


It is true that, in the judgment of 2 July 2009, SCT Industri (C‑111/08, EU:C:2009:419, paragraph 33), the Court held that an action challenging a transfer of shares in a company made in the course of insolvency proceedings fell within the scope of Regulation No 1346/2000.
28


As to the second criterion, mentioned in paragraph 20 of the present judgment, the Court has consistently held that it is the closeness of the link between a court action 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 (judgment of 2 July 2009, SCT Industri, C‑111/08, EU:C:2009:419, paragraph 25).