H v H.K.
Date: 2014-12-04
18. Furthermore, it must be stated that the Court, in its case-law concerning the assess ment of the question whether proceedings derive directly from insolvency proceedings or are closely connected with them, has taken into account, first, the fact that the various types of actions which it heard were brought in connection with insolvency proceedings. Secondly, the Court concerned itself above all with determining on each occasion whether the action at issue derived from insolvency law or from other rules (see, to that effect, judgment in Nickel & Goeldner Spedition , C‑157/13, EU:C:2014:2145, paragraph 26).
21. Admittedly, the Court has already held that, in order to identify the area within which an action falls, it is necessary to determine whether the right or the obligation which forms 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 (judgment in Nickel & Goeldner Spedition , EU:C:2014:2145, paragraph 27).
23. Under Paragraph 64 of the GmbHG, the managing director of a debtor company must reimburse the payments which he made on behalf of that company after it became insolvent or after it was established that the company’s liabilities exceeded its assets. That provision therefore clearly derogates from the common rules of civil and commercial law, specifically because of the insolvency of the debtor company.
24. An interpretation of Article 3(1) of Regulation No 1346/2000 to the effect that an action based on Paragraph 64 of the GmbHG, brought in insolvency proceedings, is not an action deriving directly from insolvency proceedings and closely connected with them, would therefore create an artificial distinction between that action and comparable actions, such as the actions to set transactions aside at issue in the cases which gave rise to the judgments in Seagon  (EU:C:2009:83) and F-Tex  (EU:C:2012:215), on the sole ground that the action based on Paragraph 64 of the GmbHG could theoretically be brought even if there were no insolvency proceedings. Such an interpretation, which has no basis in the relevant provisions of Regulation No 1346/2000, cannot be accepted.
26. Accordingly, the answer to questions 1 and 3 is that Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction, on the basis of that provision, to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets.
Question 2
31. Secondly, the Court, in a case concerning, inter alia, the exclusion of ‘bankruptcy, proceedings relating to the winding‑up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ from the scope of Regulation No 44/2001, provided for, in identical terms to those of Article 1(2)(b) of the Lugano II Convention, in Article 1(2)(b) of that regulation, has previously held that that exclusion, on the one hand, and the scope of Regulation No 1346/2000, on the other, must be interpreted in such a way as to avoid any overlapping of the rules of law laid down by those texts. Consequently, in so far as an action falls under Article 3(1) of Regulation No 1346/2000, it does not fall within the scope of Regulation No 44/2001 (see, to that effect, Nickel & Goeldner Spedition , EU:C:2014:2145, paragraph 21 and the case-law cited).
32. In the light, in particular, of the identical wording of the provisions concerned, the considerations set out in the preceding paragraph may be transposed to the interpretation of Article 1(2)(b) of the Lugano II Convention. Therefore, since the action in the main proceedings falls under Article 3(1) of Regulation No 1346/2000, it is excluded from the scope of that convention. Accordingly, the fact that the Swiss Confederation is a contracting party to the Lugano II Convention is irrelevant for the purposes of the outcome of the dispute in the main proceedings, the convention not being applicable to that dispute.
33. Thirdly, the Court has already ruled 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 the insolvency proceedings were opened have jurisdiction to hear and determine an action which derives directly from those proceedings and which is closely connected with them that is brought against a defendant whose place of residence is not within the territory of a Member State (see the judgment in Schmid , EU:C:2014:6, paragraphs 30 and 39 and the case-law cited).