MG Probud Gdynia sp. z o.o.
Date: 2010-01-21
22. For the purpose of answering the questions as reformulated, it should be noted first of all that Article 3 of the Regulation makes provision for two types of insolvency proceedings. Insolvency proceedings opened, in accordance with Article 3(1), by the competent court of the Member State within the territory of which the centre of a debtor’s main interests is situated, described as the ‘main proceedings’, produce universal effects in that the proceedings apply to the debtor’s assets situated in all the Member States in which the Regulation applies. Although, subsequently, proceedings under Article 3(2) may be opened by the competent court of the Member State where the debtor has an establishment, those proceedings, described as ‘secondary proceedings’, produce effects which are restricted to the assets of the debtor situated in the territory of the latter State (see Case C-341/04 Eurofood IFSC  [2006] ECR I-3813, paragraph 28).
25. In addition, by virtue of Article 4(1) of the Regulation, determination of the court with jurisdiction entails determination of the law which is to apply. As regards both the main insolvency proceedings and secondary insolvency proceedings, the law of the Member State within the territory of which proceedings are opened, referred to as the ‘State of the opening of proceedings’, is applicable to the insolvency proceedings and their effects. In this respect, Article 4(2) of the Regulation contains a non-exhaustive list of the various matters in the proceedings which are governed by the law of State of the opening of proceedings, including in particular, in subparagraph (b), the assets which form part of the estate, in subparagraph (c), the respective powers of the debtor and the liquidator, and in subparagraph (f), the effects of the insolvency proceedings on proceedings brought by individual creditors.
26. Furthermore, it follows from Article 16(1) of the Regulation, read in conjunction with Article 17(1), that the judgment opening insolvency proceedings in a Member State is to be recognised in all the other Member States from the time that it becomes effective in the State of the opening of proceedings and that it is, with no further formalities, to produce the same effects in any other Member State as under the law of the State of the opening of proceedings. In accordance with Article 25 of the Regulation, recognition of all judgments other than that relating to the opening of insolvency proceedings also occurs automatically.
27. As is shown by recital 22 in the preamble to the Regulation, the rule of priority laid down in Article 16(1) of the Regulation, which provides that insolvency proceedings opened in one Member State are to be recognised in all the Member States from the time that they produce their effects in the State of the opening of proceedings, is based on the principle of mutual trust ( Eurofood IFSC , paragraph 39).
28. It is indeed that mutual trust which has enabled not only the establishment of a compulsory system of jurisdiction which all the courts within the purview of the Regulation are required to respect, but also as a corollary the waiver by the Member States of the right to apply their internal rules on recognition and enforcement in favour of a simplified mechanism for the recognition and enforcement of judgments handed down in the context of insolvency proceedings ( Eurofood IFSC , paragraph 40, and by analogy, with regard to the Brussels Convention, Case C-116/02 Gasser  [2003] ECR I-14693, paragraph 72, and Case C‑159/02 Turner  [2004] ECR I‑3565, paragraph 24).
29. The Court has pointed out in this connection that it is inherent in that principle of mutual trust that the court of a Member State hearing an application for the opening of main insolvency proceedings check that it has jurisdiction in the light of Article 3(1) of the Regulation, that is to say examine whether the centre of the debtor’s main interests is situated in that Member State. In return, the courts of the other Member States recognise the judgment opening main insolvency proceedings, without being able to review the assessment made by the first court as to its jurisdiction ( Eurofood IFSC , paragraphs 41 and 42).
34. With regard to this second ground for refusal, the Court stated initially in the context of the Brussels Convention that, since recourse to the public policy clause contained in Article 27(1) of that Convention constitutes an obstacle to the achievement of one of the fundamental aims of the Convention, namely to facilitate the free movement of judgments, such recourse is reserved for exceptional cases (Case C-7/98 Krombach  [2000] ECR I‑1935, paragraphs 19 and 21, and Eurofood IFSC , paragraph 62). The case-law relating to Article 27(1) of the Convention is transposable to the interpretation of Article 26 of the Regulation ( Eurofood IFSC , paragraph 64).
37. It is clear from Article 3(1) of the Regulation that, in the case of a company, the place of the registered office is to be presumed to be the centre of its main interests in the absence of proof to the contrary. The Court has stated in this regard that the simple presumption laid down by the Community legislature in favour of the registered office of a company can be rebutted only if factors which are both objective and ascertainable by third parties enable it to be established that the actual situation is different from that which locating the centre of the company’s main interests at the registered office is supposed to reflect ( Eurofood IFSC , paragraph 34). That could be so in particular in the case of a company not carrying out any business in the territory of the Member State in which its registered office is situated. By contrast, where a company carries on its business in the territory of the Member State where its registered office is situated, the fact that its economic choices are or can be controlled by a parent company established in another Member State is not enough to rebut the presumption laid down by the Regulation ( Eurofood IFSC , paragraph 37).
39. In accordance with the wording of Article 1(1) of the Regulation, insolvency proceedings to which the Regulation applies must have four characteristics. They must be collective proceedings, based on the debtor’s insolvency, which entail at least partial divestment of that debtor and prompt the appointment of a liquidator. Those forms of proceedings are listed in Annex A to the Regulation, and the list of liquidators appears in Annex C ( Eurofood IFSC , paragraphs 46 and 47).