Vinyls Italia SpA v Mediterranea di Navigazione SpA.
Date: 2017-06-08
25


As the Court has held, Article 13 of Regulation No 1346/2000 expressly governs the allocation of the burden of proof, but it does not contain any provisions on more specific procedural aspects. For instance, that article does not set out, inter alia, the ways in which evidence is to be elicited, what evidence is to be admissible before the appropriate national court, or the principles governing that court’s assessment of the probative value of the evidence adduced before it (judgment of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 27). It is the same for other procedural aspects, such as the form and time-limit for relying on that article in the context of proceedings.
26


According to settled case-law, in the absence of harmonisation of such rules under EU law, it is for the national legal order of each Member State to establish them in accordance with the principle of procedural autonomy provided, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 28 and the case-law cited).
28


That conclusion is not called into question by the fact that the exception introduced in Article 13 of Regulation No 1346/2000 also includes limitation periods or other time-bars relating to actions to set aside transactions under the lex causae, as the Court held in its judgment of 16 April 2015, Lutz (C‑557/13, EU:C:2015:227, paragraph 49).
29


The conclusion reached by the Court in the judgment referred to in the previous paragraph is based on the consideration that Articles 4 and 13 of Regulation No 1346/2000 constitute a lex specialis in relation to other legislation governing the international law of the Member States, in particular in relation to the Rome I Regulation, and must be interpreted in the light of the objectives pursued by Regulation No 1346/2000 (see, to that effect, judgment of 16 April 2015, Lutz, C‑557/13, EU:C:2015:227, paragraph 46).
30


As regards, more specifically, the objective pursued by Article 13 of Regulation No 1346/2000, it is clear from the case-law that the aim of that article is to protect the legitimate expectations of a person who has benefited from an act detrimental to all the creditors by providing that the act will continue to be governed, even after insolvency proceedings have been opened, by the law that was applicable at the date on which it was concluded, namely the lex causae (judgment of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 19).
35


In that regard, the Court has held, first of all, that it is clear from the objective pursued by Article 13 of Regulation No 1346/2000, as recalled in paragraph 30 above, that the application of that article requires that all the circumstances of the case be taken into account. There cannot be legitimate expectations where, after insolvency proceedings have been opened, the validity of an act is to be assessed without regard being had to those circumstances whereas, where such proceedings are not opened, such circumstances would need to be taken into account (judgment of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 20).
36


Next, the Court held that the obligation to interpret strictly the exception laid down in Article 13 of Regulation No 1346/2000 precludes a broad interpretation of the scope of that article which would allow a person who has benefited from an act detrimental to all the creditors to avoid the application of the lex fori concursus by relying solely, in a purely abstract manner, on the unchallengeable character of the act at issue on the basis of a provision of the lex causae (judgment of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 21).
37


Finally, the Court also held that, for the purposes of the application of Article 13 of Regulation No 1346/2000 and in the event that the defendant in an action relating to the voidness, voidability or unenforceability of an act relies on a provision of the lex causae under which that act can be challenged only in the circumstances provided for in that provision, it is for that defendant to plead that those circumstances do not exist and to bear the burden of proof in that regard (judgment of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 31).
48


Thus, as was recalled in paragraph 29 above, the Court has held that Articles 4 and 13 of Regulation No 1346/2000 constitute a lex specialis in relation to the Rome I Regulation and must be interpreted in the light of the objectives pursued by Regulation No 1346/2000 (judgment of 16 April 2015, Lutz, C‑557/13, EU:C:2015:227, paragraph 46).
52


In that context, it is apparent from well-established case-law that a finding of abuse requires a combination of objective and subjective elements. First, with regard to the objective element, that finding requires that it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by Community rules, the purpose of those rules has not been achieved. Second, such a finding requires a subjective element, namely that it must be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain an undue advantage. The prohibition of abuse is not relevant where the economic activity carried out may have some explanation other than the mere attainment of an advantage (judgment of 28 July 2016, Kratzer, C‑423/15, EU:C:2016:604, paragraphs 38 to 40 and the case-law cited).
53


The Court also held that, in order to establish the existence of the second element, which relates to the intention of operators, account may be taken, in particular, of the purely artificial nature of the transactions concerned. It is for the referring court to verify in accordance with the rules of evidence of national law, provided that the effectiveness of EU law is not undermined, whether action constituting such an abusive practice has taken place in the case before it (judgment of 28 July 2016, Kratzer, C‑423/15, EU:C:2016:604, paragraphs 41 to 42 and the case-law cited).