1 This request for a preliminary ruling concerns the interpretation of Article 32(2) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).
2 The request has been made in proceedings brought by NK, in his capacity as liquidator in the main insolvency proceedings opened against Alpine BAU GmbH, a company established in Austria, against the order of the Okrožno sodišče v Celju (Regional Court, Celje, Slovenia) dismissing his application to lodge claims in Slovenia following the opening of secondary insolvency proceedings in that other Member State, on the ground that the application was out of time.
3 Recitals 6 and 19 to 23 of Regulation No 1346/2000 state: ‘(6) In accordance with the principle of proportionality this 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. In addition, this Regulation should contain provisions regarding the recognition of those judgments and the applicable law which also satisfy that principle. … (19) Secondary insolvency proceedings may serve different purposes, besides the protection of local interests. Cases may arise where the estate of the debtor is too complex to administer as a unit or where differences in the legal systems concerned are so great that difficulties may arise from the extension of effects deriving from the law of the State of the opening to the other States where the assets are located. For this reason, the liquidator in the main proceedings may request the opening of secondary proceedings when the efficient administration of the estate so requires. (20) Main insolvency proceedings and secondary proceedings can, however, contribute to the effective realisation of the total assets only if all the concurrent proceedings pending are coordinated. The main condition here is that the various liquidators must cooperate closely, in particular by exchanging a sufficient amount of information. In order to ensure the dominant role of the main insolvency proceedings, the liquidator in such proceedings should be given several possibilities for intervening in secondary insolvency proceedings which are pending at the same time. For example, he should be able to propose a restructuring plan or composition or apply for realisation of the assets in the secondary insolvency proceedings to be suspended. (21) Every creditor, who has his habitual residence, domicile or registered office in the Community, should have the right to lodge his claims in each of the insolvency proceedings pending in the Community relating to the debtor’s assets. This should also apply to tax authorities and social insurance institutions. However, in order to ensure equal treatment of creditors, the distribution of proceeds must be coordinated. Every creditor should be able to keep what he has received in the course of insolvency proceedings but should be entitled only to participate in the distribution of total assets in other proceedings if creditors with the same standing have obtained the same proportion of their claims. (22) This Regulation should provide for immediate recognition of judgments concerning the opening, conduct and closure of insolvency proceedings which come within its scope and of judgments handed down in direct connection with such insolvency proceedings. Automatic recognition should therefore mean that the effects attributed to the proceedings by the law of the State in which the proceedings were opened extend to all other Member States. Recognition of judgments delivered by the courts of the Member States should be based on the principle of mutual trust. To that end, grounds for non-recognition should be reduced to the minimum necessary. This is also the basis on which any dispute should be resolved where the courts of two Member States both claim competence to open the main insolvency proceedings. The decision of the first court to open proceedings should be recognised in the other Member States without those Member States having the power to scrutinise that court’s decision. (23) This Regulation should set out, for the matters covered by it, uniform rules on conflict of laws which replace, within their scope of application, national rules of private international law. Unless otherwise stated, the law of the Member State of the opening of the proceedings should be applicable (lex concursus). This rule on conflict of laws should be valid both for the main proceedings and for local proceedings; the lex concursus determines all the effects of the insolvency proceedings, both procedural and substantive, on the persons and legal relations concerned. It governs all the conditions for the opening, conduct and closure of the insolvency proceedings.’
4 Article 3 of Regulation No 1346/2000, entitled ‘International jurisdiction’, states: ‘1. The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. 2. Where the centre of a debtor’s main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State. The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State. 3. Where insolvency proceedings have been opened under paragraph 1, any proceedings opened subsequently under paragraph 2 shall be secondary proceedings. These latter proceedings must be winding-up proceedings. 4. Territorial insolvency proceedings referred to in paragraph 2 may be opened prior to the opening of main insolvency proceedings in accordance with paragraph 1 only: (a) where insolvency proceedings under paragraph 1 cannot be opened because of the conditions laid down by the law of the Member State within the territory of which the centre of the debtor’s main interests is situated; or (b) where the opening of territorial insolvency proceedings is requested by a creditor who has his domicile, habitual residence or registered office in the Member State within the territory of which the establishment is situated, or whose claim arises from the operation of that establishment.’
5 Under Article 4 of that regulation, entitled ‘Law applicable’: ‘1. Save as otherwise provided in this Regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened, hereafter referred to as the “State of the opening of proceedings”. 2. The law of the State of the opening of proceedings shall determine the conditions for the opening of those proceedings, their conduct and their closure. It shall determine in particular: … (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; (h) the rules governing the lodging, verification and admission of claims; …’
6 Article 28 of that regulation, on the law applicable to secondary insolvency proceedings, provides: ‘Save as otherwise provided in this Regulation, the law applicable to secondary proceedings shall be that of the Member State within the territory of which the secondary proceedings are opened.’
7 Article 31 of Regulation No 1346/2000, entitled ‘Duty to cooperate and communicate information’, provides: ‘1. Subject to the rules restricting the communication of information, the liquidator in the main proceedings and the liquidators in the secondary proceedings shall be duty bound to communicate information to each other. They shall immediately communicate any information which may be relevant to the other proceedings, in particular the progress made in lodging and verifying claims and all measures aimed at terminating the proceedings. 2. Subject to the rules applicable to each of the proceedings, the liquidator in the main proceedings and the liquidators in the secondary proceedings shall be duty bound to cooperate with each other. 3. The liquidator in the secondary proceedings shall give the liquidator in the main proceedings an early opportunity of submitting proposals on the liquidation or use of the assets in the secondary proceedings.’
8 Article 32 of that regulation, entitled ‘Exercise of creditors’ rights’, is worded as follows: ‘1. Any creditor may lodge his claim in the main proceedings and in any secondary proceedings. 2. The liquidators in the main and any secondary proceedings shall lodge in other proceedings claims which have already been lodged in the proceedings for which they were appointed, provided that the interests of creditors in the latter proceedings are served thereby, subject to the right of creditors to oppose that or to withdraw the lodgement of their claims where the law applicable so provides. 3. The liquidator in the main or secondary proceedings shall be empowered to participate in other proceedings on the same basis as a creditor, in particular by attending creditors’ meetings.’
9 Under Article 33 of that regulation, entitled ‘Stay of liquidation’: ‘1. The court, which opened the secondary proceedings, shall stay the process of liquidation in whole or in part on receipt of a request from the liquidator in the main proceedings, provided that in that event it may require the liquidator in the main proceedings to take any suitable measure to guarantee the interests of the creditors in the secondary proceedings and of individual classes of creditors. Such a request from the liquidator may be rejected only if it is manifestly of no interest to the creditors in the main proceedings. Such a stay of the process of liquidation may be ordered for up to three months. It may be continued or renewed for similar periods. 2. The court referred to in paragraph 1 shall terminate the stay of the process of liquidation: - at the request of the liquidator in the main proceedings, - of its own motion, at the request of a creditor or at the request of the liquidator in the secondary proceedings if that measure no longer appears justified, in particular, by the interests of creditors in the main proceedings or in the secondary proceedings.’
10 Article 34 of that regulation, concerning ‘Measures ending secondary insolvency proceedings’, provides: ‘1. Where the law applicable to secondary proceedings allows for such proceedings to be closed without liquidation by a rescue plan, a composition or a comparable measure, the liquidator in the main proceedings shall be empowered to propose such a measure himself. Closure of the secondary proceedings by a measure referred to in the first subparagraph shall not become final without the consent of the liquidator in the main proceedings; failing his agreement, however, it may become final if the financial interests of the creditors in the main proceedings are not affected by the measure proposed. 2. Any restriction of creditors’ rights arising from a measure referred to in paragraph 1 which is proposed in secondary proceedings, such as a stay of payment or discharge of debt, may not have effect in respect of the debtor’s assets not covered by those proceedings without the consent of all the creditors having an interest. 3. During a stay of the process of liquidation ordered pursuant to Article 33, only the liquidator in the main proceedings or the debtor, with the former’s consent, may propose measures laid down in paragraph 1 of this Article in the secondary proceedings; no other proposal for such a measure shall be put to the vote or approved.’
11 Regulation No 1346/2000 was repealed by Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19). However, under Article 84(2) of the latter regulation, Regulation No 1346/2000 remains applicable ratione temporis to the insolvency proceedings at issue in the main proceedings.
12 Article 59(2) of the Zakon o finančnem poslovanju, postopkih zaradi insolventnosti in prisilnem prenehanju (Law on financial transactions, insolvency proceedings and compulsory liquidation, Uradni list RS, No 126/2007), in the version applicable to the case in the main proceedings (‘the ZFPPIPP’), provides that a creditor must lodge his or her claim, in the insolvency proceedings, in respect of an insolvent debtor within three months of publication of the notice of the opening of such proceedings, save as otherwise provided for in paragraphs 3 and 4 of that article.
13 Pursuant to Article 298(1) of the ZFPPIPP, if the claim is guaranteed by a preferential right, the creditor is required also to lodge the preferential right in the insolvency proceedings, within the period laid down for lodging a claim, save as otherwise provided for in Article 281(1) or Article 282(2) of the ZFPPIPP.
14 Article 296(5) of the ZFPPIPP provides that, where a creditor does not lodge his or her claim in respect of the insolvency debtor within the period provided for that purpose, the claim is to be extinguished and the court having jurisdiction is to refuse the creditor’s claim lodged out of time. According to Article 298(5) of the ZFPPIPP, where a creditor does not comply with the time limit for lodging a preferential right, that right is to be extinguished.
15 Paragraph 107(1) of the Insolvenzordnung (Law on Insolvency) provides that, in respect of claims lodged after the expiry of the period for lodging claims and not dealt with at the general hearing to verify liabilities, a special hearing is to be ordered to verify that the debts exist. Claims which are presented less than 14 days before the final hearing to examine liabilities will not to be taken into consideration.
16 By decision of the Handelsgericht Wien (Commercial Court, Vienna, Austria) of 19 June 2013, insolvency proceedings were opened against Alpine BAU, and NK was appointed as liquidator of that company. As is apparent from the judgment of that court of 5 July 2013, the insolvency proceedings in question are main insolvency proceedings within the meaning of Article 3(1) of Regulation No 1346/2000.
17 On application by NK, the Okrožno sodišče v Celju (Regional Court, Celje), by decision of 9 August 2013, opened secondary insolvency proceedings against Alpine BAU GmbH, Salzburg - Celje branch (‘Alpine BAU Slovenia’).
18 By a notice published on the same day on the website of the Agencija Republike Slovenije za javnopravne evidence in storitve (Agency of the Republic of Slovenia for statutory public registers and related services), the Okrožno sodišče v Celju (Regional Court, Celje) informed the creditors and liquidators in other related insolvency proceedings that, pursuant to Article 32 of the Regulation No 1346/2000, they had the right to lodge, in the secondary proceedings opened in Slovenia, their claims in the main proceedings and in any secondary proceedings and, to that end, set a time limit of three months from the publication of that notice, which expired on 11 November 2013.
19 At the time of that notice, that court also drew the attention of the creditors and liquidators to the fact that if, by that date, they had not lodged their claims, the latter would be extinguished vis-à-vis the insolvent debtor in those secondary insolvency proceedings and that the court would dismiss any application to lodge claims, pursuant to Article 296(5) or Article 298(5) of the ZFPPIPP.
20 On 30 January 2018, NK applied to the Okrožno sodišče v Celju (Regional Court, Celje) for leave to lodge claims from the main proceedings in the secondary insolvency proceedings, in accordance with Article 32(2) of Regulation No 1346/2000. By order of 5 July 2019, that court rejected that lodging of claims as being out of time, on the basis of Article 296(5) of the ZFPPIPP.
21 NK appealed against that order to the referring court, the Višje sodišče v Ljubljani (Court of Appeal, Ljubljana, Slovenia). He submits that Article 32(2) of Regulation No 1346/2000 establishes a ‘special right’ for the liquidator in the main insolvency proceedings, which is not recognised in Slovenian law. That special right entitles him to lodge claims from the main proceedings in any secondary insolvency proceedings, without him being given a time limit for doing so. According to NK, the application of such a time limit would have the consequence of depriving him, in practice, of the right provided for in Article 32(2) of that regulation, in so far as it was impossible for NK to submit, within the three-month period referred to in Slovenian law, claims which were not yet declared or recognised in another Member State.
22 NK states that the insolvency of Alpine BAU is one of the largest amongst those which have taken place in Austria, and that the winding-up proceedings extended over several years, the last hearing having taken place on 2 October 2018. It is argued that, for the purposes of its effective application, Article 32(2) of Regulation No 1346/2000 requires that the liquidator in such large-scale main insolvency proceedings not be subject to a strict time limit for the lodging of claims on the sole basis of the law of the Member State in which the secondary proceedings have been opened. Thus, in order to ensure the primacy of Regulation No 1346/2000, the ZFPPIPP should be disregarded.
23 Alpine BAU Slovenia submits, by contrast, that, pursuant to Article 4(1) of Regulation No 1346/2000, the law of the Member State within the territory of which insolvency proceedings have been opened is to apply in all cases, unless Regulation No 1346/2000 provides otherwise. However, that regulation does not contain any provision disapplying national law as regards the time limit set in secondary insolvency proceedings for the lodging of claims by the liquidator in the main insolvency proceedings. Furthermore, Article 32(2) of Regulation No 1346/2000 does not provide for any ‘special right’ for the liquidator in the main insolvency proceedings, since that provision merely allows that liquidator to lodge claims as the legal representative of the estate’s creditors. The interpretation to the effect that Slovenian creditors are bound by a strict time limit for the lodging of claims in secondary insolvency proceedings, while creditors in other Member States who are represented by a liquidator are not thus bound, would lead to unequal treatment between those two categories of creditor. Moreover, Alpine BAU Slovenia claims that the wording of Article 32(2) of Regulation No 1346/2000 does not require that the claims lodged by the liquidator in the main proceedings and those in the other secondary proceedings first be verified and admitted in those proceedings.
24 In those circumstances, the Višje sodišče v Ljubljani (Court of Appeal, Ljubljana) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Is Article 32(2) of Regulation No 1346/2000 to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceedings?’
25 As a preliminary point, it should be noted that, according to the settled case-law of the Court, even if, formally, the referring court has limited its questions to the interpretation of certain aspects of EU law, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not that court has referred to them in the wording of its questions (see, to that effect, judgment of 9 July 2020, Santen, C‑673/18, EU:C:2020:531, paragraph 35 and the case-law cited).
26 Thus, it should be understood that, by its question, the referring court is asking, in essence, whether Article 32(2) of Regulation No 1346/2000, read in conjunction with Articles 4 and 28 of that regulation, must be interpreted as meaning that the lodging, in secondary insolvency proceedings, of claims already submitted in the main insolvency proceedings, by the liquidator in those latter proceedings, is subject to the provisions relating to the time limits for lodging claims and to the consequences of lodging claims out of time, laid down by the law of the Member State of the opening of the secondary proceedings.
27 Article 32(2) of Regulation No 1346/2000 provides that the liquidators in the main proceedings and any secondary proceedings are to lodge in other proceedings claims which have already been lodged in the proceedings for which they were appointed, provided that the interests of creditors in the latter proceedings are served thereby, subject to the right of creditors to oppose that or to withdraw the lodgement of their claims where the law applicable so provides.
28 As is apparent from the wording of that provision, it lays down an obligation in principle for a liquidator to lodge claims already lodged in the insolvency proceedings for which he was appointed in the other related insolvency proceedings. By contrast, that provision, like the other provisions of Regulation No 1346/2000, does not offer any clarification as to the time limits governing the lodging of claims or the consequences of any lodging of such claims out of time.
29 Nevertheless, it should be noted, first, that Article 4(1) of Regulation No 1346/2000 provides that, save as otherwise provided in that regulation, the law applicable to insolvency proceedings and their effects is to be that of the Member State within the territory of which such proceedings are opened, referred to as the ‘State of the opening of proceedings’. As is apparent from recital 23 of that regulation, that conflict-of-law rule applies both to the main proceedings and to secondary proceedings (see, to that effect, judgment of 21 January 2010, MG Probud Gdynia, C‑444/07, EU:C:2010:24, paragraph 25). Article 28 of that regulation provides to that effect that, save as otherwise provided in that regulation, the law applicable to secondary proceedings is to be that of the Member State within the territory of which secondary proceedings are opened.
30 Second, Article 4(2) of Regulation No 1346/2000, which defines the scope of paragraph 1 of that article, contains a non-exhaustive list of the various points of the proceedings which are governed by the law of the State of the opening of proceedings, including, in particular, in point (h), the rules concerning the lodging, verification and admission of claims.
31 From this, the Court has inferred that, in order not to render those provisions ineffective, the consequences of a failure to respect the law of the State of the opening of proceedings concerning the lodging of claims and, in particular, the time limits laid down in that regard must also be assessed on the basis of that law (see, by analogy, judgment of 9 November 2016, ENEFI, C‑212/15, EU:C:2016:841, paragraph 18 and the case-law cited).
32 It follows that, in so far as Regulation No 1346/2000 does not bring about harmonisation of the time limits for the lodging of claims in insolvency proceedings coming within the scope of its application, it is for 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 9 November 2016, ENEFI, C‑212/15, EU:C:2016:841, paragraph 30 and the case-law cited).
33 More specifically, the time limits relating to the lodging, in secondary insolvency proceedings, of claims lodged in insolvency proceedings connected with those proceedings, opened in another Member State, by the liquidator in the latter proceedings, pursuant to Article 32(2) of that regulation, are governed by the law of the State of the opening of those secondary proceedings, subject to compliance with the principles of equivalence and effectiveness referred to in the preceding paragraph of the present judgment.
34 In the present case, NK, the liquidator in the main insolvency proceedings, submits, in essence, that that provision should be interpreted as conferring on the liquidator in the main proceedings a ‘special right’ to lodge, in the secondary insolvency proceedings, the claims already lodged in the main proceedings for which he was appointed, without being subject to the time limits prescribed by the law of the State in which the secondary proceedings were opened. NK argues that this special right is justified by the obligation, on the part of that liquidator, to await the verification and admission of claims in the main insolvency proceedings before lodging them in secondary proceedings.
35 It is true that the liquidator in the main proceedings has certain prerogatives at his or her disposal which allow him or her to influence the secondary insolvency proceedings in such a way that the protective purpose of the main proceedings is not jeopardised. Thus, pursuant to Article 33(1) of Regulation No 1346/2000, he or she may request an order for stay of the process of liquidation for up to three months, which may be continued or renewed for similar periods. In accordance with Article 34(1) of that regulation, the liquidator in the main proceedings may also propose closing the secondary proceedings with a rescue plan, a composition or a comparable measure. Article 34(3) provides that, during the stay of the process of liquidation under Article 33(1) of the regulation, only the liquidator in the main proceedings or the debtor, with the liquidator’s consent, may propose such measures (judgment of 22 November 2012, Bank Handlowy and Adamiak, C‑116/11, EU:C:2012:739, paragraph 61).
36 Similarly, it should be observed that the principle of sincere cooperation laid down in Article 4(3) TEU requires the court having jurisdiction to open secondary proceedings, in applying those provisions, to have regard to the objectives of the main proceedings and to take account of the scheme of Regulation No 1346/2000, which, as observed in recital 20 thereof, aims to ensure efficient and effective cross-border insolvency proceedings through mandatory coordination of the main and secondary proceedings guaranteeing the priority of the main proceedings (judgment of 22 November 2012, Bank Handlowy and Adamiak, C‑116/11, EU:C:2012:739, paragraph 62).
37 However, the liquidator in the main insolvency proceedings cannot eschew, on the basis of Article 32(2) of Regulation No 1346/2000, the time limits for the lodging of claims laid down by the law of the State of the opening of the secondary proceedings in which he or she lodges the claims already lodged in the main proceedings for which he or she has been appointed.
38 It should be recalled that Regulation No 1346/2000 rests on the principle that the requirement of equal treatment of creditors, which, mutatis mutandis, underpins all insolvency proceedings (see, to that effect, judgment of 6 June 2018, Tarragó da Silveira, C‑250/17, EU:C:2018:398, paragraph 31 and the case-law cited).
39 Since, under Article 32(2) of Regulation No 1346/2000, liquidators act in the name and on behalf of the creditors, that provision cannot be interpreted as meaning that those liquidators may disregard the law of the State of the opening of proceedings governing the time limits for the lodging of those claims, whereas creditors acting in their own name and on their own behalf cannot. If that were the case, the latter creditors would be placed at a disadvantage compared with those whose claims are lodged by the liquidator in other related proceedings.
40 Thus, creditors acting in their own name and on their own behalf are not only required to comply with the time limits for the lodging of their claims, but, in the event that such claims are lodged out of time, would also have to bear the consequences laid down by the law of the State of the opening of proceedings, whereas creditors represented by a liquidator in other related proceedings would benefit from a total absence of limitation period and would avoid any consequence of lodging claims out of time. Such unequal treatment could lead to an unjustified infringement of the rights of a category of creditors.
41 In any event, contrary to what NK maintains in his written observations, Article 32(2) of Regulation No 1346/2000 cannot be interpreted as meaning that the liquidator in the main insolvency proceedings must wait until the claims he intends to lodge in the secondary proceedings have been verified and admitted in the main proceedings before they can be lodged in the secondary proceedings. As is clear from paragraphs 28 and 29 of the present judgment, the verification and admission of claims are, in accordance with Article 4(2)(h) of that regulation, governed by the law of the State of the opening of proceedings. Accordingly, it is for the liquidator in the secondary proceedings to ascertain, in the light of the law of the State of the opening of those secondary proceedings, whether the claims thus lodged may be admitted. The fact that the liquidator in the main proceedings verified the claims in the light of the law applicable to the main proceedings is not a priori relevant for the verification of the same claims lodged in the secondary proceedings.
42 It follows from all of the foregoing that the answer to the question referred is that Article 32(2) of Regulation No 1346/2000, read in conjunction with Articles 4 and 28 of that regulation, must be interpreted as meaning that the lodging, in secondary insolvency proceedings, of claims already submitted in the main insolvency proceedings by the liquidator in those proceedings is subject to the provisions relating to time limits for the lodging of claims and to the consequences of lodging such claims out of time, laid down by the law of the State of the opening of those secondary proceedings.
43 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.