F‑Tex SIA v Lietuvos‑Anglijos UAB ‘Jadecloud-Vilma’.
Date: 2012-04-19
21. Both the Report on the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, drawn up by Mr Jenard (OJ 1979 C 59, p. 1), and the Report on the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to that Convention and to the Protocol on its interpretation by the Court of Justice, drawn up by Mr Schlosser (OJ 1979 C 59, p. 71), stated that the matters referred to by that exclusion were to be covered by a separate Convention. Mr Schlosser’s report stated, in paragraph 53, that the two Conventions were intended to dovetail completely with each other, avoiding any problems of interpretation.
22. In Gourdain , delivered in connection with the Brussels Convention, the Court defined the scope of the exclusion in question. In paragraph 4 of that judgment, it held that it is necessary, if decisions relating to bankruptcy and winding-up are to be excluded from the scope of the Brussels Convention, that they must derive directly from the bankruptcy or winding-up and be closely connected with the proceedings for realising the assets or judicial supervision.
23. In the judgment in Case C‑111/08 SCT Industri  [2009] ECR I‑5655, which was delivered after the entry into force of Regulation No 44/2001, the Court held that, in so far as that regulation replaces the Brussels Convention, an interpretation given concerning that Convention also applies to the regulation where the provisions in question may be treated as equivalent, which is true of Article 1(2)(b) of the regulation and point 2 of the second paragraph of Article 1 of the Brussels Convention, the wording of which is identical. Using again the criterion that an action is related to bankruptcy or winding-up if it derives directly from the bankruptcy or winding-up and is closely connected with proceedings for realising the assets or for judicial supervision, the Court stated that it is the closeness of the link, in the sense of the case‑law deriving from Gourdain , between a court action and the insolvency proceedings that is decisive for the purposes of deciding whether that exclusion is applicable (see, to that effect, SCT Industri , paragraphs 22 to 25).
– Regulation No 1346/2000
24. Regulation No 1346/2000 reproduces, in identical terms, the provisions of the Convention on Insolvency Proceedings, opened for signature by the Member States at Brussels on 23 November 1995.
26. In paragraph 20 of that judgment, the Court pointed out that it is exactly the criterion defined in Gourdain  that is used by recital 6 in the preamble to Regulation No 1346/2000 in order to delimit the purpose of the regulation. According to that recital, the regulation should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings.
27. The Court deduced that, taking into account that intention of the legislature and the effectiveness of the regulation, Article 3(1) thereof must be interpreted as meaning that it also confers on the courts of the Member State which has jurisdiction to open insolvency proceedings international jurisdiction to hear and determine actions which derive directly from those proceedings and which are closely connected with them ( Seagon , paragraph 21).
29. It follows from all of the above considerations, first, that Article 1(2)(b) of Regulation No 44/2001 excludes from the scope of that regulation, which, in accordance with recital 7 in its preamble, is intended to apply to all civil and commercial matters apart from certain well-defined matters, only actions which derive directly from insolvency proceedings and are closely connected with them. It follows from the same considerations, second, that only actions which derive directly from insolvency proceedings and are closely connected with them are covered by Regulation No 1346/2000.
34. Furthermore, in SCT Industri , the Court held, in connection with the recognition of a judgment which held that a transfer granted by the liquidator appointed in insolvency proceedings was invalid on the ground that the liquidator had no power to dispose of the assets transferred, that such a matter is covered by the concept of bankruptcy or winding-up for the purposes of Article 1(2)(b) of Regulation No 44/2001 (see, to that effect, SCT Industri , paragraph 33).
41. That question may, however, remain open if it is evident that, in any event, the exercise by the assignee of the right acquired is not closely connected with the insolvency proceedings.
42. It must be stated that, as observed by F‑Tex and the Lithuanian and German Governments, the exercise of the right acquired by an assignee is subject to rules other than those applicable in insolvency proceedings.
45. The fact that, in the main proceedings, the benefit granted by F‑Tex in consideration for the assignment by the liquidator of his right to have a transaction set aside took the form of an obligation to pay the liquidator a percentage of the proceeds obtained from the claim assigned does not alter that analysis, since it is merely a method of payment. Such a contractual stipulation is within the power of the parties as it is not disputed that the liquidator and the assignee could freely choose to express the consideration paid by the assignee in the form of a fixed sum or a percentage of any sums recovered.
48. Consequently, and without the need to rule on the existence of any direct link between that action and the insolvency of the debtor, it must be held that that action is not covered by Article 3(1) of Regulation No 1346/2000 and, symmetrically, that it does not concern bankruptcy or winding-up for the purposes of Article 1(2)(b) of Regulation No 44/2001.