Nike European Operations Netherlands BV v Sportland Oy.
Date: 2015-10-15
17. In that regard, the Court notes that the wording of Article 13 of the regulation differs slightly in the Finnish language version from that of the other language versions, in so far as the former does not appear to include the words ‘in the relevant case’ or a similar expression. According to settled case-law of the Court, the need for a uniform interpretation of a provision of EU law means that, where there is divergence between the various language versions of the provision, the latter must be interpreted by reference to the context and purpose of the rules of which it forms part (see judgment in Christie’s France , C‑41/14, EU:C:2015:119, paragraph 26 and the case-law cited).
18. As for the context and purpose of Article 13 of Regulation No 1346/2000, it must, first, be recalled that that article provides, in Article 4(1), for an exception to the general rule that the law applicable to insolvency proceedings and their effects is the law of the State of the opening of proceedings (‘lex fori concursus’). Second, that exception, which, as stated in recital 24 in the preamble to the regulation, aims to protect legitimate expectations and the certainty of transactions in Member States other than that in which proceedings are opened, must be interpreted strictly, and its scope cannot go beyond what is necessary to achieve that objective (see judgment in Lutz , C‑557/13, EU:C:2015:227, paragraph 34).
19. Thus, Article 13 of Regulation No 1346/2000 aims 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.
20. It is clear from that objective that the application of Article 13 of Regulation No 1346/2000 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.
21. Moreover, the obligation to interpret strictly the exception laid down in Article 13 of the regulation 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.
27. Nevertheless, although Article 13 of the regulation expressly governs where the burden of proof lies, 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.
28. 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) (see, to that effect, judgment in Kušionová , C‑34/13, EU:C:2014:2189, paragraph 50 and the case-law cited).
29. In particular, in so far as the principle of effectiveness mentioned in paragraph 28 above is concerned, that principle precludes, first, the application of national rules of procedure that would make reliance on Article 13 of Regulation No 1346/2000 impossible or excessively difficult by providing for rules which are too onerous, especially in connection with proof of the negative, namely that certain circumstances did not exist. Second, that principle precludes national rules of evidence that are not sufficiently rigorous, the application of which would, in fact, have the effect of shifting the burden of proof laid down in Article 13 of the regulation.
31. In those circumstances, the answer to the second and third questions is 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.
The fourth question
41. Moreover, that is the only conclusion which is consistent with the aim of Article 13 of the regulation, stated in paragraph 19 above, to protect the legitimate expectations of a person who has benefited from an act detrimental to all the creditors by providing that that act will continue to be governed by the law that was applicable at the date on which it was concluded. At that date, the act was governed by the lex causae, taken as a whole, as applicable in the absence of insolvency proceedings since, according to the case-law of the Court, Article 13 of the regulation is not, in principle, applicable to acts which take place after the opening of insolvency proceedings (see judgment in Lutz , C‑557/13, EU:C:2015:227, paragraph 36).
43. Furthermore, as is apparent from paragraphs 27 to 29 above, since Article 13 of Regulation No 1346/2000 does not set out, inter alia, the ways in which evidence is to be elicited, what evidence is admissible before the appropriate national court, or the principles governing that court’s assessment of the probative value of the evidence adduced before it, it is for the national legal order of each Member State to establish such details in accordance with the principle of procedural autonomy provided, however, that the principles of equivalence and effectiveness are respected. National rules of evidence that are not sufficiently rigorous, the application of which would, in practice, shift the burden of proof, would not be consistent with the principle of effectiveness.