Interedil Srl, in liquidation v Fallimento Interedil Srl and Intesa Gestione Crediti SpA.
Date: 2011-10-20
19. It is sufficient to point out in that connection that Article 68 EC lapsed with the entry into force of the Lisbon Treaty on 1 December 2009 and the limitation laid down in that provision on the right to refer a question to the Court for a preliminary ruling disappeared. Pursuant to Article 267 TFEU, the courts and tribunals against whose decisions there is a judicial remedy under domestic law have enjoyed, since that date, the right to refer questions to the Court where acts adopted on the basis of Title IV of the EC Treaty are concerned (see, to that effect, Case C‑238/09 Weryński [2011] ECR I‑0000, paragraphs 28 and 29).
20. At paragraphs 30 and 31 of Weryński , the Court held that, in the light of the objective of establishing effective cooperation between the Court of Justice and the national courts pursued by Article 267 TFEU and the principle of procedural economy, it must be held that since 1 December 2009 the Court has had jurisdiction to hear and determine a reference for a preliminary ruling from a court against whose decisions there is a judicial remedy under national law, even where the reference was lodged prior to that date.
23. The Court has consistently held that it can refrain from giving a preliminary ruling on a question submitted by a national court only where, inter alia, it is quite obvious that the interpretation of European Union law sought by that court bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-439/08 VEBIC [2010] ECR I-0000, paragraph 42 and the case‑law cited).
29. In a reference for a preliminary ruling, the Court is empowered to rule on the interpretation or validity of a rule of European Union law on the basis of the facts which the national court or tribunal puts before it, and it is for the national court or tribunal to apply that rule to the specific case before it (see, inter alia, Case C‑149/05 Price  [2006] ECR I‑7691, paragraph 52 and the case‑law cited).
35. The Court has already held that the existence of a national procedural rule cannot call into question the discretion of national courts not ruling at final instance to make a reference to the Court for a preliminary ruling where they have doubts, as in the main proceedings, as to the interpretation of European Union law (Case C‑173/09 Elchinov  [2010] ECR I‑0000, paragraph 25).
36. It is settled case-law that a judgment in which the Court gives a preliminary ruling is binding on the national court, as regards the interpretation or the validity of the acts of the European Union institutions in question, for the purposes of the decision to be given in the main proceedings (see, inter alia, Elchinov , paragraph 29).
37. It follows that the national court, having exercised the discretion conferred on it by the second paragraph of Article 267 TFEU, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court and must, if necessary, disregard the rulings of the higher court if it considers, having regard to that interpretation, that they are not consistent with European Union law (see, inter alia, Elchinov , paragraph 30).
38. It is appropriate to point out that, in accordance with settled case-law, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, that is to say, in the present case, the national procedural rule at issue in the main proceedings, and it is not necessary for the court to request or await the prior setting aside of that national provision by legislative or other constitutional means (see, inter alia, Elchinov , paragraph 31).
42. The Court has consistently held that it follows from the need for uniform application of European Union law and from the principle of equality that the terms of a provision of that law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Union, having regard to the context of the provision and the objective pursued by the legislation in question (see, inter alia, Case C‑174/08 NCC Construction Danmark  [2009] ECR I‑10567, paragraph 24 and case-law cited).
43. With regard in particular to the term ‘the centre of a debtor’s main interests’ within the meaning of Article 3(1) of the Regulation, the Court held, at paragraph 31 of Eurofood IFSC , that that concept is peculiar to the Regulation, thus having an autonomous meaning, and must therefore be interpreted in a uniform way, independently of national legislation.
47. While the Regulation does not provide a definition of the term ‘centre of a debtor’s main interests’, guidance as to the scope of that term is, nevertheless, as the Court stated at paragraph 32 of Eurofood IFSC , to be found in recital 13 in the preamble to the Regulation, which states that ‘the “centre of main interests” should correspond to the place where the debtor conducts the administration of his interests on a regular basis and [which] is therefore ascertainable by third parties’.
48. As the Advocate General observed at point 69 of her Opinion, the presumption in the second sentence of Article 3(1) of the Regulation that the place of the company’s registered office is the centre of its main interests and the reference in recital 13 in the preamble to the Regulation to the place where the debtor conducts the administration of his interests reflect the European Union legislature’s intention to attach greater importance to the place in which the company has its central administration as the criterion for jurisdiction.
49. With reference to that recital, the Court also stated, at paragraph 33 of Eurofood IFSC , that the centre of a debtor’s main interests must be identified by reference to criteria that are both objective and ascertainable by third parties, in order to ensure legal certainty and foreseeability concerning the determination of the court with jurisdiction to open the main insolvency proceedings. That requirement for objectivity and that possibility of ascertainment by third parties may be considered to be met where the material factors taken into account for the purpose of establishing the place in which the debtor company conducts the administration of its interests on a regular basis have been made public or, at the very least, made sufficiently accessible to enable third parties, that is to say in particular the company’s creditors, to be aware of them.
50. It follows that, where the bodies responsible for the management and supervision of a company are in the same place as its registered office and the management decisions of the company are taken, in a manner that is ascertainable by third parties, in that place, the presumption in the second sentence of Article 3(1) of the Regulation that the centre of the company’s main interests is located in that place is wholly applicable. In such a case, as the Advocate General observed at point 69 of her Opinion, it is not possible that the centre of the debtor company’s main interests is located elsewhere.
51. The presumption in the second sentence of Article 3(1) of the Regulation may be rebutted, however, where, from the viewpoint of third parties, the place in which a company’s central administration is located is not the same as that of its registered office. As the Court held at paragraph 34 of Eurofood IFSC , the simple presumption laid down by the European Union legislature in favour of the registered office of that company can be rebutted if factors which are both objective and ascertainable by third parties enable it to be established that an actual situation exists which is different from that which locating it at that registered office is deemed to reflect.
52. The factors to be taken into account include, in particular, all the places in which the debtor company pursues economic activities and all those in which it holds assets, in so far as those places are ascertainable by third parties. As the Advocate General observed at point 70 of her Opinion, those factors must be assessed in a comprehensive manner, account being taken of the individual circumstances of each particular case.
55. That interpretation finds support in the Court’s case-law. The Court has held that, where the centre of a debtor’s main interests is transferred after the lodging of a request to open insolvency proceedings, but before the proceedings are opened, the courts of the Member State within the territory of which the centre of main interests was situated at the time when the request was lodged retain jurisdiction to rule on those proceedings (Case C‑1/04 Staubitz‑Schreiber  [2006] ECR I‑701, paragraph 29). It must be inferred from this that, in principle, it is the location of the debtor’s main centre of interests at the date on which the request to open insolvency proceedings was lodged that is relevant for the purpose of determining the court having jurisdiction.
62. 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’.
64. The answer to the second part of Question 3 is therefore that the term ‘establishment’ within the meaning of Article 3(2) of the Regulation must be interpreted as requiring the presence of a structure consisting of a minimum level of organisation and a degree of stability necessary for the purpose of pursuing an economic activity. The presence alone of goods in isolation or bank accounts does not, in principle, meet that definition.
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