ENEFI Energiahatékonysági Nyrt v Direcția Generală Regională a Finanțelor Publice Brașov (DGRFP).
Date: 2016-11-09
18


More specifically, Article 4(2)(g) and (h) of Regulation No 1346/2000 provide that the lex fori concursus determines which claims must be lodged against the debtor’s estate, the treatment of claims arising after the opening of insolvency proceedings, and the rules governing the lodging, verification and admission of claims. However, in order not to render those provisions ineffective, the consequences of a failure to respect the rules of the lex fori concursus concerning the filing of claims and, in particular, the time limits laid down in that regard must also be assessed on the basis of that lex fori concursus (see, by analogy, judgment of 10 December 2015, Kornhaas, C‑594/14, EU:C:2015:806, paragraph 19).
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On the other hand, although Regulation No 1346/2000 provides for the possibility of opening secondary insolvency proceedings, subject to certain conditions, the Court has previously stated that the opening of such proceedings, which, pursuant to Article 3(3) of that regulation, must be winding-up proceedings, may run counter to the purpose served by main proceedings, which are of a protective nature, and that the regulation therefore sets out a number of mandatory rules of coordination intended to ensure, as expressed in recital 12 thereof, the unity required in the European Union. In that system, the main proceedings have a dominant role in relation to the secondary proceedings, as stated in recital 20 of the regulation (see, to that effect, judgment of 22 November 2012, Bank Handlowy and Adamiak, C‑116/11, EU:C:2012:739, paragraphs 59 and 60).
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Furthermore, it should be added that, due to the fact that Regulation No 1346/2000 does not bring about harmonisation of the time limits for the lodging of claims in cases of insolvency coming within the scope of its application, 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 the rules relating thereto 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 of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 28 and the case-law cited). In the absence of sufficient information in that regard emerging, in particular, from the parties’ submissions, it will be for the national court to determine whether those criteria are fulfilled as regards Article 20(3) of Law No XLIX of 1991.
32


That provision must be read in conjunction with Article 4(2)(f) of Regulation No 1346/2000, which distinguishes ‘lawsuits pending’ from other proceedings brought by individual creditors. Thus, the effects of insolvency proceedings on proceedings brought by individual creditors other than ‘lawsuits pending’ are in any event governed by the single lex fori concursus. As the Advocate General explained in points 67 to 78 of his Opinion, proceedings seeking the enforcement of a claim come within the latter category.
33


On that last point, it should be added that Regulation No 1346/2000 is guided by the principle that the requirement of equal treatment of creditors, which, mutatis mutandis, underpins all insolvency proceedings, precludes, in general, proceedings brought by individual creditors by means of enforcement proceedings, introduced and conducted while insolvency proceedings against the debtor are pending. Thus, Article 20(1) of Regulation No 1346/2000 requires a creditor who obtains, ‘in particular through enforcement’, satisfaction with regard to its claim on the assets belonging to the debtor situated within the territory of a Member State other than the State of the opening of proceedings to return to the liquidator that which has been obtained.
34


It would be contradictory to interpret Article 15 of Regulation No 1346/2000 as also covering enforcement proceedings, with the consequence that the effects of the opening of insolvency proceedings would thus come within the scope of the law of the Member State in which such enforcement proceedings are pending, while, in parallel, Article 20(1) of that regulation, by explicitly requiring the return to the liquidator of everything obtained ‘through enforcement’, would render Article 15 ineffective.
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Consequently, it is necessary to find that enforcement proceedings do not come within the scope of application of Article 15 of Regulation No 1346/2000.