Christopher Seagon v Deko Marty Belgium NV.
Date: 2009-02-12
16. It is clear from the order for reference that the action to set a transaction aside is governed in German law by Paragraph 129 et seq. of the Insolvency Code (Insolvenzordnung) of 5 October 1994 (BGB1. 1994 I, p. 2866). Only the liquidator may bring such an action in the event of insolvency with the sole purpose of protecting the interests of the general body of creditors. Under the provisions of Paragraphs 130 to 146 of that code, the liquidator may challenge acts undertaken before the insolvency proceedings were opened which are detrimental to the creditors.
19. In that connection, it must be noted, as a preliminary point, that the Court has held, in its case-law 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), that an action similar to that at issue in the main proceedings is related to bankruptcy or winding-up if it derives directly from the bankruptcy or winding-up and is closely connected with the proceedings for the ‘liquidation des biens’ or the ‘règlement judiciaire’ (see Case 133/78 Gourdain  [1979] ECR 733, paragraph 4). An action with such characteristics does not therefore fall within the scope of that convention.
20. It is exactly that criterion that is used by recital 6 in the preamble to Regulation No 1346/2000 in order to delimit the purpose of the regulation. Thus, according to that recital, the regulation should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings.
21. Taking into account that intention of the legislature and the effectiveness of the regulation, Article 3(1) thereof must be interpreted as meaning that it also confers international jurisdiction on the Member State within the territory of which insolvency proceedings were opened in order to hear and determine actions which derive directly from those proceedings and which are closely connected to them.
22. Concentrating all the actions directly related to the insolvency of an undertaking before the courts of the Member State with jurisdiction to open the insolvency proceedings also appears consistent with the objective of improving the effectiveness and efficiency of insolvency proceedings having cross-border effects, referred to in recitals 2 and 8 in the preamble to Regulation No 1346/2000.
23. Furthermore, that interpretation is confirmed by recital 4 in the preamble to that regulation, according to which it is necessary for the proper functioning of the internal market to avoid incentives for the parties to transfer assets or judicial proceedings from one Member State to another, seeking to obtain a more favourable legal position (forum shopping).
24. The possibility for more than one court to exercise jurisdiction as regards actions to set a transaction aside by virtue of insolvency brought in various Member States would undermine the pursuit of such an objective.
26. Pursuant to the second subparagraph of Article 25(1) of Regulation No 1346/2000, the first subparagraph of Article 25(1) is also to apply to judgments deriving directly from the insolvency proceedings and which are closely linked with them. In other words, that provision allows the possibility for courts of a Member State within the territory of which insolvency proceedings have been opened, pursuant to Article 3(1) of that regulation, also to hear and determine an action of the type at issue in the main proceedings.
27. In that context, the words ‘even if they were handed down by another court’, at the end of the last sentence of the second subparagraph of Article 25(1) of Regulation No 1346/2000, do not mean that the Community legislature wished to exclude the jurisdiction of the courts of the State within the territory of which the insolvency proceedings for the type of actions concerned were opened. Those words mean, in particular, that it is for the Member States to determine the court with territorial and substantive jurisdiction, which does not necessarily have to be the court which opened the insolvency proceedings. Moreover, those words refer to the recognition of judgments opening insolvency proceedings, which is provided for in Article 16 of Regulation No 1346/2000.
28. Having regard to all of the foregoing considerations, the answer to the first question is that Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction to decide an action to set a transaction aside by virtue of insolvency that is brought against a person whose registered office is in another Member State.