19-20 February Applicable Law. - Workshop Material - Miodrag Đorđević, PhD Supreme Court Judge, Senior

Transcription

1 European Judicial Training Network (EJTN) Seminar on Cross-Border Insolvency in the EU Escuela Judicial del Consejo general del Poder Judicial Barcelona (SPAIN) February 2013 Applicable Law - Workshop Material - Miodrag Đorđević, PhD Supreme Court Judge, Senior Supreme Court - Republic of Slovenia Tavčarjeva 9, 1102 Ljubljana, Slovenia Tel.: miodrag.dordevic@sodisce.si 1

2 The plaintiff brought a claim against Road Masters before the court in Utrecht (Netherlands). It became apparent that at the time the claim was brought before the court, insolvency proceedings had already been opened in respect of Road Masters in Germany. Key issue Was the plaintiff s claim admissible given that insolvency proceedings had already been opened in respect of Road Masters in Germany? Court: First instance court - Rechtbank Utrecht Date: 20 Jan, 2010 Jurisdiction: Netherlands Original language: Dutch Official reference: Rechtbank Utrecht 20 January 2010, LJN: BL0014 Parties: X B.V. -v- Road Masters Fahrzeug Logistics GmbH Public source: LJN: BL0014 ( Relevant Article(s) 17, 16, 4 Recognition 2

3 By a judgment of 9 June 2005, a Polish court opened insolvency proceedings in respect of MG Probud (the company) whose registered office was in Poland but which operated in Germany through a branch. Two days later, a German court ordered the attachment of the company s assets held by banks and of various claims of that company against German contractual partners. The German appellate court rejected an appeal against that latter judgment considering that the opening of the insolvency proceedings relating to MG Probud s assets did not prevent attachment in Germany as it could not be determined from the copy of the opening decision in Poland whether the insolvency proceedings had to be recognised in Germany pursuant to Annex A of the Insolvency Regulation. The Polish court referred questions to the CJEU as to whether the attachment effected by the German authorities was lawful since the law of the opening State (Polish law) would not allow such attachment after the company has been declared insolvent. Key issue The question was whether the competent authorities of a member state were entitled to refuse to recognise and to enforce judicial decisions taken by the court of another member state where main insolvency proceedings were opened and then to allow, in accordance with their legislation, to order the attachment of assets of the debtor who has been declared insolvent abroad? Court: Court of Justice of the European Union Date: 21 Jan, 2010 Jurisdiction: European Union Original language: Polish Official reference: Case C-444/07 Parties: MG Probud Gdynia sp. z o.o. Public source: Additional sources: Relevant CJEU case law Eurofood IFSC Ltd, 2 May 2006, C-341/04 Gasser, 9 December 2003, C-116/02 Turner, 27 April 2004, C-159/02 Krombach, 28 March 2000, C-7/98 3

4 Relevant Article(s) 25(3), 17(1), 16(1), 5, 25(1), 10, 26, 18(1), 1, 4, 3 Scope of application of the EIR, Universality, Recognition, Preservation measures, Main proceeding(s), Location of assets, Jurisdiction, Enforcement measures, Collective insolvency proceedings, Applicable law 4

5 A French company (Société Médiasucre) was put into liquidation by the French commercial court ( Tribunal de Commerce de Marseille ). The liquidator made an application to the court to include an Italian company (Société Rastelli) in the insolvency proceedings on the grounds that the properties of the two companies were intermixed. The court held that it lacked jurisdiction primarily on the basis that Rastelli s registered office was in Italy and that it had no establishment in France. However, the French Court of Appeal of Aix-en-Provence ( Cour d appel Aix-en-Provence ) in its judgment of February 2009 held that the commercial court did have jurisdiction on the basis that the application was not aimed at the opening of insolvency proceedings against the Italian company, but rather to extend the insolvency proceedings opened in respect of Société Médiasucre to the Italian company. The Italian company appealed the judgment of the Court of Appeal arguing that a decision extending insolvency proceedings opened against one debtor to another legal person must be considered to be the opening of proceedings. Consequently, the Italian company argued that such proceedings must then comply with the requirements of Article 3(1) EIR, i.e., the requirement that the location of the centre of main interest of the company be in the opening State. Key issue Does the Insolvency Regulation allow the French Court to extend insolvency proceedings against a company with its registered office, and by presumption its centre of main interests, in another member state simply on the basis of the intermixing of properties of the companies concerned? Court: Highest appellate court - Cour de cassation, Chambre commerciale Date: 19 Apr, 2010 Jurisdiction: France Original language: French Official reference: Cass. com., 19 April 2010, n de pourvoi: , Bulletin 2010, IV, n 81 Parties: Médiasucre international -v- Rastelli Davide et C. Public source: Relevant Article(s) 3(1), 4 Location of assets, Jurisdiction, COMI, Collective insolvency proceedings 5

6 A submitted an appeal for the recovery of A s tax refund by an enforcement order. Among other things, A claimed that main insolvency proceedings opened in Germany prevented the execution of his tax refund. A restructuring of debts had been opened prior to the execution on 25 August 2008 with a decision of the district court of Spandau. The Finnish Appellate court stated that the German insolvency proceedings fell under the scope of the Insolvency Regulation. Thus, the proceedings were to be recognised in Finland (Article 16 EIR) and would produce the same effects as under German law (Article 17 EIR). Since no secondary insolvency proceedings referred to in Article 3(2) EIR had been opened in Finland, also A s Finnish assets and income were considered part of the German insolvency proceedings. Additionally, the court specifically stated that, pursuant to Article 4(2)(f) EIR, the effects of the insolvency proceedings were to be determined according to German law. According to the German Act governing the insolvency proceedings, all of A s payments were to be paid only to a trustee assigned by the German court and A was not to prefer, separate from all the other creditors with separate payments. Furthermore, creditors were not allowed to demand receivables outside of the German proceedings. Key issues In accordance with which country s law should the effects of German insolvency proceedings be determined in relation to a person living in Finland? Did German insolvency proceedings prevent the recovery of a tax refund by an enforcement order in Finland? Court: Appellate court - Helsingin hovioikeus Date: 13 Feb, 2011 Jurisdiction: Finland Original language: Finnish Official reference: U10/1578 Relevant Article(s) 20, 17, 16, 4, 3 Enforcement measures, Debt restructuring, Applicable law 6

7 Insolvency proceedings against an Austrian debtor was opened in Austria in At that time Austria was a member of EU, Hungary was not an EU member state. Hungary acceded the EU in The plaintiff stated that the debtor had granted a type of right in rem (security deposit) over its assets in Hungary before Hungary acceded to the European Union. In 2006, the plaintiff brought an action before the Fővárosi Bíróság (Budapest Municipal Court) against the defendants in the main proceedings seeking a declaratory judgment to the effect that it had a right over the security deposit paid into court. The first and second instance court struck the claim out. On appeal, the Hungarian Supreme Court referred the case to the CJEU for a preliminary ruling. The judgment of the CJEU clarified that the Hungarian court had to take the Insolvency Regulation into consideration. The Hungarian first and second instance courts refused to deal with the case because it was of the view that in accordance with Article 4 EIR, that the law applicable to insolvency proceedings and their effects should be that of the member state within the territory of which such proceedings are opened, the law applicable was therefore Austrian insolvency law. According to Austrian law, after the opening of insolvency proceedings, any action against the debtor outside the proceedings are prohibited; creditors must demand their claims in the insolvency procedure. There are two exceptions: creditors with rights to satisfy themselves outside the proceedings, and those who state their ownership over the assets which belong to the debtor have the possibility to bring an action, but the defendant in this procedure can only be the insolvency practitioner, because the debtor itself cannot bring a claim. (Austrian Insolvency Act - Konkursordnung Art.6.(2)). Key issue Which article of the Insolvency Regulation must be applied in the case: Article 4 as the former courts did, or Article 5? Court: Highest appellate court - Kúria Date: 13 Nov, 2012 Jurisdiction: Hungary Original language: Hungarian Official reference: Kúria Gfv.VII /2012/5 7

8 Parties: Unknown - [Kúria Gfv.VII /2012/5] Public source: Additional source: Relevant CJEU case law C-527/10 Relevant Article(s) 4, 5(1) Brussels I Regulation (2001/44/EC), Jurisdiction, Lex rei sitae, Right in rem 8