CeDe Group AB v KAN Sp. z o.o. in bankruptcy.
Date: 2019-11-21
28


Under Article 4(1) of Regulation No 1346/2000, save as otherwise provided in the regulation, the law applicable to insolvency proceedings and their effects is that of the Member State within the territory of which the insolvency proceedings are opened. Article 4(2) of that regulation, first, states that the law of the State of the opening of proceedings is to determine the conditions for the opening, procedure and closing of the insolvency proceedings and, second, 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 (see, to that effect, judgment of 21 January 2010, MG Probud Gdynia, C‑444/07, EU:C:2010:24, paragraph 25). That list includes, in point (d) of that provision, the conditions under which set-offs may be invoked; in point (e), the effects of insolvency proceedings on current contracts to which the debtor is party; and in point (g), the claims which are to be lodged against the debtor’s estate and the treatment of claims arising after the opening of insolvency proceedings.
31


The Court has held, with regard to the scope of Article 3 of Regulation No 1346/2000, read in the light of recital 6 of that regulation, that only actions which derive directly from insolvency proceedings or which are closely connected with them fall within the scope of that regulation (see, to that effect, judgment of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraphs 25 and 26 and the case-law cited). In that context, 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 forms the basis of the action has its source in the ordinary rules of civil and commercial law or in derogating rules specific to insolvency proceedings (judgment of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraphs 28 and the case-law cited).
32


It follows therefrom that, when an action has its source in derogating rules specific to insolvency proceedings, it falls within the scope of Article 4 of Regulation No 1346/2000, save where that regulation expressly provides to the contrary (see, to that effect, judgment of 10 December 2015, Kornhaas, C‑594/14, EU:C:2015:806, paragraph 17).
36


In particular, the mere fact that a liquidator has brought such an action is not decisive for the purposes of assessing whether that liquidator is covered by the concept of ‘insolvency proceedings and their effects’. First, an action for payment of goods delivered in accordance with a contract may, in principle, be brought by the creditor himself, such that that action does not fall within the exclusive powers of the liquidator. Second, the bringing of such an action in no way depends on the opening of insolvency proceedings, in so far as such an action for payment may be brought independently of any insolvency proceedings. Accordingly, an action for payment of goods delivered in accordance with a contract, such as that at issue in the main proceedings, cannot be regarded as the direct and inseparable consequence of such proceedings (see, by analogy, judgment of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraph 36).