Nickel & Goeldner Spedition GmbH v ‘Kintra’ UAB.
Date: 2014-09-04
21. 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), 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. Following the same reasoning, 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 in F-Tex , C‑213/10, EU:C:2012:215, paragraphs 21, 29 and 48).
22. The Court also noted that, as inter alia recital 7 in the preamble to Regulation No 44/2001 states, 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 in the preamble thereto, should not be broadly interpreted (judgment in German Graphics Graphische Maschinen , C‑292/08, EU:C:2009:544, paragraphs 23 to 25).
23. 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 (judgment in F-Tex , EU:C:2012:215, paragraphs 23 and 29 and the case-law cited).
24. As regards the application of that distinction, the Court has held that an application to make good a deficiency in the assets, which, under French law, may be taken by the insolvency administrator against the managers of the company in order to have them declared liable, must be considered to be an action which derives directly from insolvency proceedings and is closely connected with them. In order to reach that conclusion, the Court relied, in essence, on the consideration that that action was based on provisions derogating from the general rules of civil law (see, in the context of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial proceedings, judgment in Gourdain , 133/78, EU:C:1979:49, paragraphs 4 to 6). The Court has adopted a similar view in relation to an action to set a transaction aside which, in German law, may be taken by the insolvency administrator in order to challenge acts undertaken before the insolvency proceedings were opened which are detrimental to the creditors. It noted, in that context, that the action was based in the national rules relating to insolvency proceedings (judgment in Seagon , C‑339/07, EU:C:2009:83, paragraph 16).
25. By contrast, the Court has held that an action brought on the basis of a reservation of title clause against an insolvency administrator has only an insufficiently direct and insufficiently close link with insolvency proceedings on the ground, in essence, that the question of law raised in such an action is independent of the opening of insolvency proceedings (judgment in German Graphics Graphische Maschinen , EU:C:2009:544, paragraphs 30 and 31). Similarly, an action brought by an applicant on the basis of an assignment of claims granted by an insolvency administrator and relating to the right to have a transaction set aside conferred on the latter by the German insolvency law was considered to be not closely connected with the insolvency proceedings. The Court noted in that respect that the exercise of the right acquired by an assignee of the right acquired is subject to rules other than those applicable in insolvency proceedings (judgment in F-Tex , EU:C:2012:215, paragraphs 41 and 42).
26. It is apparent from that case-law that it is true that, in its assessment, the Court has taken into account the fact that the various types of actions which it heard were brought in connection with insolvency proceedings. However, it has mainly concerned itself with determining on each occasion whether the action at issue derived from insolvency law or from other rules.
27. It follows that 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 respects the basis of the action finds its source in the common rules of civil and commercial law or in the derogating rules specific to insolvency proceedings.
29. The fact that, after the opening of insolvency proceedings against a service provider, the action for payment is taken by the insolvency administrator appointed in the course of those proceedings and that the latter acts in the interest of the creditors does not substantially amend the nature of the debt relied on which continues to be subject, in terms of the substance of the matter, to the rules of law which remain unchanged.
38. However, the Court stated that the application, in relation to matters governed by specialised conventions, of the rules provided for by those conventions cannot compromise the principles which underlie judicial cooperation in civil and commercial matters in the EU such as the principles, recalled in recitals 6, 11, 12 and 15 to 17 in the preamble to Regulation No 44/2001, of the free movement of judgments in civil and commercial matters, predictability as to the courts having jurisdiction and therefore legal certainty for litigants, the sound administration of justice, minimisation of the risk of concurrent proceedings, and mutual trust in the administration of justice in the EU (judgments in TNT Express Nederland , EU:C:2010:243, paragraph 49, and Nipponkoa Insurance Co. (Europe) , C‑452/12, EU:C:2013:858, paragraph 36).
40. The choice thus open to the applicant corresponds, in essence, to that provided for by Regulation No 44/2001. In matters relating to a contract, the claimant may, under Articles 2(1) and 5(1) of that regulation, choose between the courts of the Member State in which the defendant is domiciled and those for the place of performance of the obligation in question. As regards a contract for carriage, which comes under the category of contracts for the provision of services (see, to that effect, judgment in Rehder , C‑204/08, EU:C:2009:439, paragraphs 29 and 30), that place is, in accordance with the second indent of Article 5(1)(b) of that regulation, the place in a Member State where, under the contract, the services were provided or should have been provided.
41. It is true that the second indent of Article 5(1)(b) of Regulation No 44/2001, the wording of which refers to only one place of performance, offers the claimant less choice than Article 31(1) of the CMR, which allows him to choose between the place where the goods were taken over by the carrier and the place designated for delivery of the goods. However, that fact is not such as to affect the compatibility of Article 31(1) of the CMR with principles which underlie judicial cooperation in civil and commercial matters in the EU. The Court has accepted in relation to contracts for carriage that, in certain circumstances, the applicant may have the choice between the courts of the place of departure and those of the place of arrival. In that respect, it has stated that such a choice granted to the applicant, apart from respecting the criterion of proximity, also satisfies the requirement of predictability, in so far as it allows the applicant, as well as the defendant, easily to identify the courts before which proceedings may be brought. What is more, it is consistent with the objective of legal certainty, since the applicant’s choice is limited to two possible judicial fora within the framework of the second indent of Article 5(1)(b) of Regulation No 44/2001 (judgment in Rehder , EU:C:2009:439, paragraph 45).