1 This request for a preliminary ruling concerns the interpretation of Article 1(2)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1), read in combination with Article 3(1) 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 between, for the one part, Oilchart International NV (‘Oilchart’), a company incorporated under Belgian law, and, for the other part, O.W. Bunker Netherlands BV (‘OWB’) and ING Bank NV, two companies incorporated under Netherlands law, concerning the recovery of an unpaid invoice drawn up for bunkering services provided by Oilchart on behalf of OWB, which has been declared insolvent.
3 Recitals 2 and 6 of Regulation No 1346/2000 state: ‘(2) The proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently and effectively … … (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.’
4 Article 3 of that regulation, entitled ‘International jurisdiction’, provides, in paragraph 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.’
5 Article 4 of that regulation, entitled ‘Law applicable’, is worded as follows: ‘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: (a) against which debtors insolvency proceedings may be brought on account of their capacity; (b) the assets which form part of the estate and the treatment of assets acquired by or devolving on the debtor after the opening of the insolvency proceedings; (c) the respective powers of the debtor and the liquidator; … (e) the effects of insolvency proceedings on current contracts to which the debtor is party; (f) the effects of the insolvency proceedings on proceedings brought by individual creditors, with the exception of lawsuits pending; (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; … (m) the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors.’
6 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). Pursuant to Article 84(2) of that latter regulation, Regulation No 1346/2000 nevertheless continues to apply to insolvency proceedings which were opened before 26 June 2017.
7 Recitals 10 and 21 of Regulation No 1215/2012 state: ‘(10) The scope of this Regulation should cover all the main civil and commercial matters apart from certain well-defined matters … … (21) In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States. …’
8 Article 1(1) and (2)(b) of Regulation No 1215/2012 provides: ‘1. This regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). 2. This regulation shall not apply to: … (b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’.
9 Article 28(1) of the regulation provides: ‘Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation.’
10 Article 25 of the Wet op het faillissement en de surséance van betaling (Law on insolvency and the suspension of payments), of 30 September 1893 (Stb. 1893, No 140; ‘the NFW’), provides: ‘1. Legal actions concerning rights or obligations belonging to the insolvency estate shall be brought against, as well as by, the liquidator. 2. If such legal actions are brought or continued by or against the insolvent debtor and they lead to a judgment against that insolvent debtor, then that judgment shall have no legal force against the insolvency estate.’
11 Article 26 of the NFW provides that: ‘Legal actions seeking of the enforcement of an obligation in the insolvency estate cannot be brought against the insolvent entity in any way other than that provided for in Article 110.’
12 Under Article 110 of the NFW: ‘Claims shall be submitted to the liquidator in the form of an invoice or other written statement indicating the nature and amount of the claim, together with supporting documents or a copy thereof, and a statement as to whether or not a right of preference, pledge, mortgage or right of retention is claimed.’
13 Pursuant to a set of contracts for bunkering services to seagoing vessels, on 21 October 2014 Oilchart delivered, on behalf of OWB, fuel to the vessel Evita K. which was moored in the port of Sluiskil (Netherlands).
14 On 22 October 2014, Oilchart issued an invoice to OWB in the amount of 116 471.45 United States dollars (USD) (approximately EUR 107 229.44). That invoice remains unpaid.
15 By a judgment of the rechtbank te Rotterdam (District Court, Rotterdam, Netherlands) of 21 November 2014, OWB was declared insolvent.
16 Oilchart submitted its claim resulting from that unpaid invoice for verification by OWB’s liquidators.
17 Owing to a series of unpaid invoices, Oilchart brought proceedings resulting in the precautionary seizure of certain seagoing vessels to which it had delivered fuel. In order to have the precautionary seizures lifted, guarantees were issued in favour of Oilchart, which could be invoked on the basis of a court ruling or an arbitral award in Belgium against either OWB or the owner of the vessel concerned.
18 On 11 March 2015, Oilchart brought an action before the rechtbank van koophandel te Antwerpen (Commercial Court, Antwerp, Belgium) against OWB seeking, inter alia, payment of the unpaid invoice. ING Bank, as assignee of OWB’s claim in consideration for the provision of credit, intervened voluntarily in those proceedings.
19 While accepting that it had jurisdiction to rule on the action, that court, by judgment of 15 March 2017, declared the action to be inadmissible on the basis of Netherlands insolvency law.
20 On 16 May 2017, Oilchart brought an appeal against that decision before the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), which is the referring court.
21 As OWB did not appear either before the rechtbank van koophandel te Antwerpen (Commercial Court, Antwerp, Belgium) or before the referring court, the latter court considered that it was required to examine its international jurisdiction, in accordance with Article 28(1) of Regulation No 1215/2012.
22 With reference to the Court’s case-law, the referring court wonders whether the action brought by Oilchart against OWB is based on the ordinary rules of civil and commercial law within the meaning of Article 1(1) of Regulation No 1215/2012 or on specific rules in insolvency proceedings.
23 In that regard, the referring court states that Oilchart’s action against OWB was lodged after insolvency proceedings had commenced without it having been declared, pursuant to a particular provision of Netherlands insolvency law, namely Article 25(2) of the NFW, relating to assets which are not part of the insolvency estate but which relate to the personal interests of the insolvent party, and not on the basis of Article 25(1) of the NFW which relates directly to that estate.
24 According to that court, the exact nature of the legal action brought by Oilchart and the possibility of bringing such an action against a company declared insolvent must be examined having regard to the specific derogating provisions of Netherlands insolvency law and not with regard to the ordinary rules of law in civil and commercial matters. In the course of determining its international jurisdiction, which precedes that examination, the referring court wonders however whether the action at issue in the main proceedings is closely connected with the insolvency proceedings, with the result that the court before which the insolvency proceedings were opened has sole jurisdiction to rule on the action.
25 In addition, the referring court questions whether Article 3(1) of Regulation No 1346/2000 precludes a provision of national law which allows a creditor to bring an action before the courts of one Member State for payment of a claim in respect of which it has already made a declaration in the insolvency estate in another Member State.
26 In those circumstances, the hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 1(2)(b) of [Regulation No 1215/2012], in conjunction with Article 3(1) of [Regulation No 1346/2000], be interpreted as meaning that the term “bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings” in Article 1(2)(b) of [Regulation No 1215/2012] includes also proceedings in which the claim is described in the [statement of claim] as a pure trade receivable, without any mention of the respondent’s previously declared [insolvency], whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands [insolvency law] (Article 25(2) of the [NFW]) and whereby: - it must be determined whether such a claim must be considered a verifiable claim (Article 26 [of the] NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) [of the] NFW), - it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the [insolvency]), may be determined in accordance with the rules specific to Netherlands [insolvency] law? … (2) Can the provisions of Article 25(2) [of the NFW] be regarded as compatible with Article 3(1) of [Regulation No 1346/2000], in so far as that legislative provision would allow such a claim (Article 25(2) [of the] NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the [insolvency proceedings were opened]?’
27 On 31 March 2023, the Court sent the referring court a request for information on the legal and factual framework of the main proceedings, to which that court responded on 28 April 2023.
28 On 11 July 2023, the Court asked the referring court whether, in the light of the fact that Oilchart had withdrawn its action in the main proceedings, it wished to maintain its request for a preliminary ruling.
29 By judgment of 27 November 2023, that court informed the Court that the proceedings were still ongoing before it as the withdrawal lodged by Oilchart had been rejected.
30 By its first question, the referring court asks, in essence, whether Article 1(2)(b) of Regulation No 1215/2012 must be interpreted as applying to an action brought in a Member State against a company seeking payment for goods delivered which does not mention either the insolvency proceedings opened previously against that company in another Member State or the fact that the claim was already declared in the insolvency estate.
31 In particular, it is necessary to determine whether such an action is covered by Article 1(2)(b) of Regulation No 1215/2012, which excludes bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings from the scope of the regulation. In that case, the action would fall within the material scope of Regulation No 1346/2000, Article 3(1) of which assigns to the courts of the Member State within the territory of which the centre of a debtor’s main interests is situated exclusive international jurisdiction to open the main insolvency proceedings (see, to that effect, judgment of 4 December 2019, Tiger and Others, C‑493/18, EU:C:2019:1046, paragraphs 23, 25 and 29 and the case-law cited).
32 The Court has already held that, as regards their respective scope, Regulations No 1215/2012 and No 1346/2000 must be interpreted in such a way as to avoid not only any overlap between the rules of law that those instruments lay down but also any legal vacuum. Accordingly, actions excluded under Article 1(2)(b) of Regulation No 1215/2012 from the scope of that regulation because they come under ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ fall within the scope of Regulation No 1346/2000. Conversely, actions which fall outside the scope of Article 3(1) of Regulation No 1346/2000 fall within the scope of Regulation No 1215/2012 (see, to that effect, judgments of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraph 24, and of 18 September 2019, Riel, C‑47/18, EU:C:2019:754, paragraph 33 and the case-law cited).
33 The Court has also held that, as stated inter alia in recital 10 of Regulation No 1215/2012, the intention of the EU legislature was to provide for a broad definition of the concept of ‘civil and commercial matters’, which appears in Article 1(1) of that regulation, and consequently for the regulation to be broad in its scope. By contrast, the scope of Regulation No 1346/2000, in accordance with recital 6 thereof, should not be interpreted broadly (see, to that effect, judgments of 20 December 2017, Valach and Others, C‑649/16, EU:C:2017:986, paragraph 25, and of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraph 25 and the case-law cited).
34 Applying those principles, the Court has held that the respective scope of each of those regulations is clearly defined and that only actions which derive directly from insolvency proceedings and are closely connected with them are excluded from the scope of Regulation No 1215/2012. Consequently, only those actions fall within the scope of Regulation No 1346/2000 (see, to that effect, judgments of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraph 26, and of 18 September 2019, Riel, C‑47/18, EU:C:2019:754, paragraph 34 and the case-law cited).
35 That twofold criterion, which appears in recital 6 of Regulation No 1346/2000 in order to delimit the subject matter of that regulation, was also confirmed by Regulation 2015/848, not applicable ratione temporis to the present case, which provides in Article 6, entitled ‘Jurisdiction for actions deriving directly from insolvency proceedings and closely linked with them’, that the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction for any action which derives directly from the insolvency proceedings and is closely linked with them (see, to that effect, judgment of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraph 27).
36 In the light of the foregoing considerations, it is therefore necessary to determine whether an action for payment for goods delivered brought against a company that is the subject of insolvency proceedings meets that twofold criterion.
37 With regard to the first criterion, in order to determine whether an action derives directly from insolvency proceedings, it should be noted that it is clear from the Court’s settled case-law that the decisive factor for identifying the area within which that action falls is not the procedural context of the action, but its legal basis. 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 (see, to that effect, judgments of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraph 28; of 18 September 2019, Riel, C‑47/18, EU:C:2019:754, paragraph 33; and of 4 December 2019, Tiger and Others, C‑493/18, EU:C:2019:1046, paragraph 27 and the case-law cited).
38 Thus, the Court has held that a claim lodged on the basis of a reservation of title clause, exercised by the seller against the purchaser who has been declared insolvent, puts in issue a question of law that is independent of the opening of insolvency proceedings. In other words, it constitutes an independent claim which is not based on the law of the insolvency proceedings and which requires neither the opening of such proceedings nor the involvement of a liquidator (see, to that effect, judgment of 10 September 2009, German Graphics Graphische Maschinen, C‑292/08, EU:C:2009:544, paragraphs 31 and 32).
39 Furthermore, a claim brought against a third party by a claimant acting on the basis of an assignment of a claim granted by the liquidator designated in the context of insolvency proceedings falls within the concept of ‘civil and commercial matters’, to the extent that the dispute does not relate to the validity of the assignment granted by the liquidator and the exercise by the assignee of the right acquired are governed by rules other than those that apply in the context of insolvency proceedings (see, to that effect, judgment of 19 April 2012, F-Tex, C‑213/10, EU:C:2012:215, paragraphs 37, 42 and 49).
40 The same is true where, in the exercise by an assignee of an acquired right, the dispute concerns the only action taken by the assignee (see, to that effect, judgment of 19 April 2012, F-Tex, C‑213/10, EU:C:2012:215, paragraph 42). By contrast, an action that puts in issue the transfer of shares made in the context of insolvency proceedings falls within the scope of Regulation No 1346/2000 to the extent that the liquidator is criticised for not having exercised a power derived under the national law governing those collective proceedings (see, to that effect, judgment of 2 July 2009, SCT Industri, C‑111/08, EU:C:2009:419, paragraph 28).
41 An action for a declaration of the existence of a claim for the purpose of its registration in the context of insolvency proceedings also falls outside the scope of Regulation No 1215/2012, as that action derives directly from the national rules on insolvency (see, to that effect, judgment of 18 September 2019, Riel, C‑47/18, EU:C:2019:754, paragraphs 37 and 38), or an action for liability brought against the members of a committee of creditors which, by their vote, caused a restructuring plan to be replaced with winding-up proceedings, such an action being the direct and inseparable consequence of the performance of a task specifically derived from provisions of national law governing insolvency proceedings (see, to that effect, judgment of 20 December 2017, Valach and Others, C‑649/16, EU:C:2017:986, paragraphs 30 and 35).
42 In the present case, it is apparent from the case file before the Court and from the information provided by the referring court that the action at issue in the main proceedings seeks an order that a company make payment for goods delivered pursuant to a contract concluded before the opening of insolvency proceedings regarding that company. According to the contracts agreed subsequently with a view to obtaining release from the precautionary seizure that had been imposed, such an order is necessary in order for the applicant in the main proceedings to be able to enforce the bank guarantees drawn up in its favour.
43 It must be held that both the contractual obligations relied on in the context of the court action and the enforcement mechanisms provided for in respect of those obligations are based on contract law and are independent of the specific rules applicable to insolvency proceedings.
44 In addition, a court action for payment for goods delivered is autonomous in so far as it may be brought outside any insolvency proceedings.
45 Furthermore, neither the opening of insolvency proceedings nor the appointment of a liquidator have the effect of altering the legal basis of an action which is covered by the ordinary rules of civil and commercial law with a view to bringing it within the scope of rules specific to insolvency proceedings.
46 The Court has held that the mere fact that a liquidator appointed in the context of insolvency proceedings, after the opening of those proceedings, has brought an action for recovery of payment in the interests of the creditors does not substantially alter the nature of the claim invoked, which is independent from the insolvency proceedings and remains subject, in terms of the substance of the matter, to the rules of ordinary law (see, to that effect, judgments of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraph 29 and the case-law cited, and of 21 November 2019, CeDe Group, C‑198/18, EU:C:2019:1001, paragraph 36).
47 With regard to the second criterion mentioned in paragraph 34 above, it is also settled case-law that it is the closeness of the link between a court action and the insolvency proceedings that is decisive for the purposes of deciding whether the exclusion in Article 1(2)(b) of Regulation No 1215/2012 is applicable (see, to that effect, judgments of 20 December 2017, Valach and Others, C‑649/16, EU:C:2017:986, paragraph 27 and the case-law cited, and of 6 February 2019, NK, C‑535/17, EU:C:2019:96, paragraph 30).
48 As the Advocate General observed in point 57 of her Opinion, that criterion allows account to be taken of contextual factors other than those relating to the legal basis of the action.
49 Although it cannot be denied that, in the case in the main proceedings, there is a connection between the action brought and the insolvency proceedings since the action was brought after the debtor company was put into liquidation in the context of which the claimant in the main proceedings produced a declaration of a claim in the insolvency estate for the same claim that it cited in that action, it does not appear however that the fact that the claim sought to be recovered before the referring court is the same as the claim lodged with the liquidator is sufficient for that same action to be covered by the exclusion referred in Article 1(2)(b) of Regulation No 1215/2012.
50 In that regard, it must be emphasised that the determination of the court which has jurisdiction does not in any way prejudge the law applicable to the claim at issue in the main proceedings, or the relevant rules for determining the law applicable to the action in the main proceedings (see, to that effect, judgment of 21 November 2019, CeDe Group, C‑198/18, EU:C:2019:1001, paragraph 38).
51 Both the question of admissibility of an individual action against an insolvent company and that of the treatment of such an action where there is a declaration of claim made in the insolvency estate are covered not by rules allocating jurisdiction but by conflict of laws rules for determining the applicable law.
52 In that regard, Article 4(1) of Regulation No 1346/2000 provides that 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.
53 Article 4(2) of that regulation states that the law of the State of the opening of proceedings is to determine the conditions for the opening of those proceedings, their conduct and the closing of the insolvency proceedings and lays down a non-exhaustive list of the various matters in the proceedings which are governed by the law of State of the opening of proceedings, namely, inter alia, in point (e), the effects of insolvency proceedings on current contracts to which the debtor is party; in point (f), the effects of the insolvency proceedings on proceedings brought by individual creditors; in point (h), the rules governing the lodging, verification and admission of claims; 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; and, in point (m), the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors.
54 It follows from a combined reading of Articles 3 and 4 of Regulation No 1346/2000 that that legislation is intended, in principle, to reach a correspondence between courts which have international jurisdiction and the law applicable to insolvency proceedings. Other than in situations in respect of which that regulation expressly provides for provisions to the contrary, the law applicable, pursuant to Article 4 of that regulation, follows the international jurisdiction determined in accordance with Article 3 of that regulation (see, to that effect, judgment of 21 November 2019, CeDe Group, C‑198/18, EU:C:2019:1001, paragraph 30).
55 To the extent that Article 3(1) of Regulation No 1346/2000 merely addresses the question of the courts with jurisdiction to open insolvency proceedings and that the scope of Article 4 of that regulation is broader than that of Article 3 thereof, in that it applies to insolvency proceedings as well as to their effects, that correspondence between the applicable law and the courts with jurisdiction cannot be guaranteed in all circumstances.
56 In the present case, since the insolvency proceedings at issue in the main proceedings were opened in the Netherlands, the law applicable to those proceedings and their effects is, in accordance with Article 4(1) of Regulation No 1346/2000, Netherlands law.
57 It follows that the court action at issue in the main proceedings, which seeks an order for the payments of goods delivered against a company declared insolvent, is covered by Netherlands law, to the extent that it is for that law, as stated in paragraph 53 of the present judgment, to determine the effects of the insolvency proceedings on the ongoing contracts and the effects of those proceedings on the individual creditors, and to lay down the rules governing the lodging, verification and admission of claims and those relating to acts liable to be detrimental to creditors.
58 As the European Commission stated at the hearing, it is the application of the same law to insolvency proceedings and to all of its effects, determined in accordance with Article 4(1) of Regulation No 1346/2000, which makes it possible to ensure that the objectives pursued by that regulation are achieved as regards the equal treatment of creditors and the protection of their interests, irrespective of the question of jurisdiction.
59 In that context, it is also necessary to find that the rule contained in Regulation No 1215/2012, pursuant to which, where the claims with the same subject matter and the same cause of action are made between the same parties before different Member States, the court seised in the second instance must stay the proceedings in order to avoid irreconcilable judgments being given on those claims, is not applicable, even by analogy, to the scheme of Regulation No 1346/2000, in that the latter allows the courts in other Member States to have jurisdiction, inter alia, for secondary insolvency proceedings (see, to that effect, judgment of 18 September 2019, Riel, C‑47/18, EU:C:2019:754, paragraphs 42, 44 and 46).
60 Having regard to all the foregoing, the answer to the first question is that Article 1(2)(b) of Regulation No 1215/2012 must be interpreted as not applying to an action brought in a Member State against a company seeking payment for goods delivered which does not mention either the insolvency proceedings opened previously against that company in another Member State or the fact that the claim was already declared in the insolvency estate.
61 Having regard to the answer given to the first question, it is not necessary to answer the second question.
62 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.