Reports of Cases. OPINION OF ADVOCATE GENERAL SZPUNAR delivered on 26 May

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1 Reports of Cases OPINION OF ADVOCATE GENERAL SZPUNAR delivered on 26 May Case C-195/15 SCI Senior Home, in administration, v Gemeinde Wedemark Hannoversche Volksbank eg (Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany)) (Area of freedom, security and justice Judicial cooperation in civil matters Insolvency proceedings Regulation (EC) No 1346/2000 Article 5 Third parties rights in rem Property tax Legislation of a Member State pursuant to which property tax constitutes a public charge on immovable property enforceable against any owner) I Introduction 1. This request for a preliminary ruling has been made in the context of a dispute between the insolvency administrator of a company established in France and a German municipality concerning the compulsory sale of immovable property, situated in Germany and owned by the French company, resulting from a failure to pay property taxes The question raised by the Bundesgerichtshof (Federal Court of Justice, Germany) will lead the Court to consider the concept of rights in rem in the light of Article 5 of Regulation (EC) No 1346/ More specifically, the Court will have an opportunity to clarify whether, with particular reference to a public charge on immovable property, it is appropriate to limit, by reference to independent classification criteria, the national classification of such a charge as a right in rem for the purposes of applying Article 5 of Regulation No 1346/2000. EN 1 Original language: French. 2 The order for reference provides no information on the role of Hannoversche Volksbank eg in the main proceedings. 3 Council Regulation of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1), as amended by Council Implementing Regulation (EU) No 583/2011 of 9 June 2011 (OJ 2011 L 160, p. 52) ( Regulation No 1346/2000 ). ECLI:EU:C:2016:369 1

2 II Legal framework A EU law 3. Article 5 of Regulation No 1346/2000, entitled Third parties rights in rem, provides: 1. The opening of insolvency proceedings shall not affect the rights in rem of creditors or third parties in respect of tangible or intangible, movable or immovable assets both specific assets and collections of indefinite assets as a whole which change from time to time belonging to the debtor which are situated within the territory of another Member State at the time of the opening of proceedings. 2. The rights referred to in paragraph 1 shall in particular mean: (a) the right to dispose of assets or have them disposed of and to obtain satisfaction from the proceeds of or income from those assets, in particular by virtue of a lien or a mortgage; (b) the exclusive right to have a claim met, in particular a right guaranteed by a lien in respect of the claim or by assignment of the claim by way of a guarantee; (c) the right to demand the assets from, and/or to require restitution by, anyone having possession or use of them contrary to the wishes of the party so entitled; (d) a right in rem to the beneficial use of assets. 3. The right, recorded in a public register and enforceable against third parties, under which a right in rem within the meaning of paragraph 1 may be obtained, shall be considered a right in rem. 4. Paragraph 1 shall not preclude actions for voidness, voidability or unenforceability as referred to in Article 4(2)(m). B German law 4. Paragraph 9(2) of the Grundsteuergesetz (Law on real property tax, GrStG ) provides: The tax shall arise at the beginning of the year for which it is set. 5. Paragraph 12 of the GrStG, entitled Guarantee in rem, is worded as follows: The real property tax shall be a public charge on the taxable property. 6. The first sentence of Paragraph 77(2) of the Abgabenordnung (Tax Code) provides: The owner of real property shall accept enforcement against the property of a tax that is a public charge on real property. 7. Paragraph 10(1) of the Law on compulsory sale (Zwangsversteigerungsgesetz) provides: A right to satisfaction of the debt out of the proceeds of sale of the real property is granted according to the following order of priority: 2 ECLI:EU:C:2016:369

3 3. claims to payment of public charges on the real property for amounts outstanding from the last four years; recurring payments, in particular real property tax, interest, supplements or payments on regularly recurring dates enjoy this right to a prior claim only in respect of current amounts and arrears from the last two years 4. claims arising from rights in respect of immovable property III The facts of the case in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court 8. The société civile immobilière Senior Home ( the debtor ) is established in France. It is the owner of immovable property situated in Wedemark (Germany). 9. By judgment of 6 May 2013, the Tribunal de grande instance de Mulhouse (Regional court, Mulhouse, France) ordered that the debtor be placed under court-supervised administration (redressement judiciaire) and appointed an insolvency administrator to assist in the management of the company. 10. On 15 May 2013, the Gemeinde Wedemark (municipality of Wedemark) applied for the compulsory sale of the property on grounds of arrears of property taxes for the period 1 October 2012 to 30 June 2013, amounting to EUR , and certified the enforceability of its claim. 11. By decision of 21 May 2013, the Amtsgericht Burgwedel (Local court, Burgwedel, Germany) ordered the compulsory sale. The appeal which the debtor company brought against that decision was dismissed. The Landgericht Hannover (Regional court, Hannover) dismissed its appeal. The debtor company brought a further appeal before the Bundesgerichtshof (Federal Court of Justice) seeking the annulment of the decision ordering the compulsory sale and the removal from the land register of the entry relating to the compulsory sale. 12. The referring court points out that the dispute before it falls within the scope of Regulation No 1346/2000. In accordance with Article 4(1) and (2)(f) of that regulation, the insolvency proceedings are to be governed by French law, which, in principal, also governs the effects of the opening of the insolvency proceedings on proceedings brought by individual creditors. 13. The referring court emphasises that, under French law, the commencement of court-supervised administration entails a general prohibition on enforcement, and there are no special rules for creditors with rights secured in rem or for tax authorities. Nevertheless, pursuant to Article 5(1) of Regulation No 1346/2000, the opening of insolvency proceedings must not affect the rights in rem of creditors or third parties in respect of immovable property situated within the territory of another Member State. 14. Under German law, property tax claims constitute, according to the referring court and in accordance with Paragraph 12 of the GrStG, a public charge on immovable property which may be enforced in rem, inasmuch as the owner of the property must, pursuant to the first sentence of Paragraph 77(2) of the Tax Code, submit to enforcement against the property. Public charges on immovable property arise regardless of whether or not a compulsory sale procedure has been initiated. 15. However, it is apparent from the order for reference that there is some doubt as to whether Article 5(1) of Regulation No 1346/2000 is to be interpreted as a conflict-of-laws rule pursuant to which it is the lex rei sitae, that is to say German law in this case, that should determine whether or not a right in rem exists. Indeed, in legal theory, the view is frequently taken that the term right in rem must be given an independent interpretation. ECLI:EU:C:2016:369 3

4 16. The referring court points out in this connection that, as is clear from recital 24 of the regulation, the fundamental purpose of the provision in question is to protect legitimate expectations and the certainty of transactions. In addition, according to recital 25 of the regulation, there is a particular need for this in the case of rights in rem, since these are of considerable importance for the granting of credit. However, the interests of tax authorities are different in many respects from those of private lenders. 17. It was in those circumstances that, by decision of 12 March 2015, received at the Registry of the Court on 29 April 2015, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: Does the term rights in rem which appears in Article 5(1) of [Regulation No 1346/2000] include a national rule such as that contained in Paragraph 12 of the [GrStG] in conjunction with the first sentence of Paragraph 77(2) of the [Tax Code] pursuant to which property tax claims are, by operation of law, a public charge on immovable property and the property owner must consequently submit to enforcement against the property? 18. Written observations have been submitted by the Kingdom of Spain and by the European Commission. Those same interested parties made oral submissions at the hearing, which was held on 10 March IV Assessment A Preliminary observations 1. The origins of Regulation No 1346/ Regulation No 1346/2000, which entered into force on 31 May 2002, is not only the first regulation to deal with insolvency proceedings, 4 it is also the outcome of lengthy negotiations which began in the 1960s within the European Economic Community, which at that time comprised only the six founding Member States. 5 It was not until 1970 that a preliminary draft of a convention was produced, 6 although it failed to gain sufficient support. A further 10 years elapsed before a second draft was published. 7 The system adopted in that second draft was based on the principles of unity (a single procedure for all of the territory of the then European Economic Community) and universality (the 4 The regulation was repealed and replaced by Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (OJ 2015 L 141, p. 19). However, in accordance with Article 84 thereof, the latter regulation applies only to insolvency proceedings opened after 26 June I would point out that bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings were excluded from the scope of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Brussels on 27 September 1968 (OJ 1972 L 299, p. 32) ( the Brussels Convention ). 6 A preliminary draft of a convention, based on the fourth indent of Article 220 of the EEC Treaty, was prepared in See Commission document 3.327/1/XIV/70. See also Noël, J., and Lemontey, J., Projet de convention relative à la faillite, aux concordats et aux procédures analogues, 1970, /XIV/70-E. 7 See the draft convention of 1980, published together with an explanatory report by J. Lemontey in Bulletin of the European Communities, Supplement 2/82. 4 ECLI:EU:C:2016:369

5 procedure covered all of a debtor s assets wherever they were located). 8 After encountering a series of obstacles, that draft was abandoned in 1985 for want of a sufficient consensus. 9 A new draft convention was then drawn up, this time based on a flexible approach to the universality of bankruptcies The Convention on Insolvency Proceedings, drawn up on the basis of Article K.3 of the Treaty on European Union, was opened for signing in Brussels on 23 November 1995, but was not signed by all the Member States. 11 Following the entry into force of the Treaty of Amsterdam and further to the initiative of the Federal Republic of Germany and the Republic of Finland, the text of the 1995 convention was finally taken up in the form of a regulation adopted on the basis of Article 61(c) EC and Article 67(1) EC The basic structure of the mechanism introduced by Regulation No 1346/ I would point out at this stage that, like the European Convention on Insolvency Proceedings, Regulation No 1346/2000 is based not on a model constructed according to the principle of the universality of insolvency proceedings, but on a model of qualified universality. Thus, the point of departure for the regulation is the universal model, but the regulation then lays down a series of special rules which operate as exceptions and which adjust or qualify its universality Generally speaking, the existence of special rules which adjust or qualify the universality of insolvency proceedings may be justified by reference to two particular needs. First, the need to protect rights acquired in a Member State other than that in which the insolvency proceedings are opened against the application of the lex concursus of another Member State, 14 and secondly the need to reduce the complexity of insolvency procedures. In this connection, recital 11 of the regulation very clearly states that, as a result of widely differing substantive laws it is not practical to introduce insolvency proceedings with universal scope in the entire Community. The application without 8 Regarding those principles see, inter alia, Lopucki, L.M., Cooperation in international bankruptcy: A post-universalist approach in Cornell Law Review, 1999, 84/3, pp. 696 to According to the second subparagraph of paragraph 3 of the explanatory report by M. Virgós and E. Schmit on the European Convention on Insolvency Proceedings of 3 May 1996, document 6500/96, DRS 8 (CFC) of the Council of the European Union ( the Virgós/Schmit report ), the 1980 draft convention provided for single proceedings (with exclusive jurisdiction in the State in which the debtor s centre of administration was located) which would be recognised in the other Contracting States, and parallel local proceedings were not permitted in those other States. The principles of unity and universality which governed the proceedings were therefore scrupulously followed in this text. It is clear from the report that the 1980 draft convention led to some very complex provisions. 10 This draft drew inspiration from the European Convention on Certain International Aspects of Bankruptcy, opened for signing in Istanbul on 5 June 1990, which was the result of negotiations within the Council of Europe but never entered into force. Its approach was also to introduce more flexibility with regard to the principles of unity and universality. See, in this connection, the European Convention on Certain International Aspects of Bankruptcy, Council of Europe, European Treaty Series, No 136. See also the explanatory report published with the convention. On this convention see, in particular, Volken, P., L harmonisation du droit international privé de la faillite in Recueil de Cours de La Haye, 1991, Vol. 230, p From the point of view of comparative law, it has been noted that it is these intermediate systems that gain favour in numerous Member States. See, to that effect, in particular, Watté, N., and Marquette, V., Les sûretés dans les faillites internationales, a General Report of the Congress of the International Academy of Comparative Law held in Bristol, European Review of Private Law, 1999, pp. 287 to Consequently, the Virgós/Schmit report accompanying the convention was never officially published. I would immediately observe, however, that, even though the report relates solely to the European Convention on Insolvency Proceedings, legal theoreticians consider that it provides useful guidance for the interpretation of Regulation No 1346/2000. See also, to that effect, the Opinion of Advocate General Jacobs in Eurofood IFSC (C-341/04, EU:C:2005:579, point 2). 12 See Watte, N., and Marquette, V., Le Règlement communautaire, du 29 mai 2000, relatif aux procédures d insolvabilité in Revue de droit commercial belge, 2000, p See, to that effect, paragraph 5 of the Virgós/Schmit report. 14 Thus, it is reasonable, under certain circumstances, for confidence in the laws under which a right has been established to be preserved to an extent that reflects, within the framework of a conflict-of-laws rule, the degree to which substantive rights insulate certain creditors from the risk of a debtor s insolvency, as in the case of rights in rem. Moreover, the normative function in certain areas of the law consists in making rights secure, as is the case, for example, with legal provisions governing civil status. See, to that effect, Virgós Soriano, M., and Garcimartín Alférez, F.J., Comentario al Reglamento europeo de insolvencia, Thomson-Civitas, Madrid, 2003, p. 92, and Virgós, M., and Garcimartín, F., The European Insolvency Regulation: Law and Practice, Kluwer Law International, The Hague, 2004, p. 90. ECLI:EU:C:2016:369 5

6 exception of the law of the State of opening of proceedings would, against this background, frequently lead to difficulties. This applies, for example, to the widely differing laws on security interests to be found in the Community. Furthermore, the preferential rights enjoyed by some creditors in the insolvency proceedings are, in some cases, completely different As regards, more specifically, the mechanism introduced by Regulation No 346/2000, Article 4(1) of the regulation provides that the law applicable to insolvency proceedings and their effects is that of the Member State within the territory of which such proceedings are opened (the lex fori concursus). As is stated in recital 23 of the regulation, that law governs all the conditions for the opening, conduct and closure of the insolvency proceedings. 16 However, in order to protect legitimate expectations and the legal certainty of transactions in Member States other than the State of the opening of insolvency proceedings, Regulation No 1346/2000 lays down, in Articles 5 to 15, 17 a certain number of exceptions to the rule of the applicable law for certain rights and legal situations which, as I mentioned in the previous point, are considered, according to recital 11 of the regulation, as particularly important. 18 Those exceptions to the application of the lex concursus relate to situations in which connecting factors (such as where the asset is situated) create a link between a given situation and the laws of another Member State It is in that context that the question submitted for a preliminary ruling by the referring court must be examined. B The question referred for a preliminary ruling 25. By its question the referring court seeks to establish, in substance, whether Article 5 of Regulation No 1346/2000 is to be interpreted as meaning that a public charge on immovable property in favour of the tax authorities, such as that at issue in the main proceedings, falls within the scope of the concept of rights in rem for the purposes of that provision. 26. In order to answer that question, it is necessary to consider whether a public charge on immovable property is indeed a right in rem and, consequently, whether the conditions of Article 5 of Regulation No 1346/2000 are fulfilled in the present case. Only if the charge on immovable property is a right in rem will the debtor company that owns the property be constrained to submit to enforcement against the property. Accordingly, I shall first of all consider the scope of Article 5 of Regulation No 13436/2000 before proceeding to consider possible limits on the national classification of a right as a right in rem for the purposes of Article The scope of Article 5 of Regulation No 1346/ It must first of all be clarified that Article 5 of Regulation No 1346/2000 applies only if the law of the place where the asset in question is situated (the lex rei sitae) classifies the right in question as a right in rem. 15 My emphasis. 16 See the judgment of 5 July 2012, ERSTE Bank Hungary (C-527/10, EU:C:2012:417, paragraph 38 and the case-law cited). 17 Qualified universality is also the consequence of the possibility of opening secondary insolvency proceedings. See recital 25 and point 33 below. See also Virgós Soriano, M., and Garcimartín Alférez, F., op. cit., p Judgment of 5 July 2012, ERSTE Bank Hungary (C-527/10, EU:C:2012:417, paragraph 39). See also recital 24 of Regulation No 1346/ These exceptions should be interpreted as special rules rather than mere exceptions. See, on this point, Virgós Soriano, M., and Garcimartín Alférez, F.J., op. cit., p. 98, and Virgós, M., and Garcimartín, F., op. cit., p ECLI:EU:C:2016:369

7 28. Next, as regards the protection of rights in rem provided by Article 5 of the regulation, I would observe that, within the scheme of the mechanism which it introduces, rights in rem in respect of assets situated in other Member States are not affected, which amounts, in principle, to the exclusion of such rights from the effects of insolvency proceedings. 20 That solution was adopted on substantive grounds, such as the objective of protecting trade in the Member State where the assets are situated and the legal certainty of rights over them. Rights in rem have a very important function with regard to credit and the mobilisation of wealth. They insulate their holders from the risk of insolvency of a debtor and enable credit to be obtained on advantageous terms. 21 Thus, legal certainty and the protection of the legitimate expectations of creditors in transactions carried out appear to be fundamental factors. 29. Moreover, there are also grounds of a procedural nature which justify increased protection for rights in rem, such as the institutional objectives of Regulation No 1346/2000 relating to the need to simplify and facilitate the administration of estates. 22 It may be noted in this connection that insolvency proceedings are relatively complex and their conduct may be costly. Reducing these costs may be to the benefit of certain creditors and at the same time will benefit all parties concerned, inasmuch as the overall costs of conducting the proceedings will be reduced According to the case-law of the Court, the scope of Article 5 of Regulation No 1346/2000 is clarified by recitals 11 and 25 of the regulation, according to which there is a need for a special reference diverging from the law of the opening State in the case of rights in rem since these are of considerable importance for the granting of credit. Thus, according to recital 25, the basis, validity and extent of such rights in rem should normally be determined according to the law of the place where the asset in question is situated (the lex rei sitae) and not be affected by the opening of insolvency proceedings Therefore, Article 5(1) of Regulation No 1346/2000 must be understood as a provision which, by derogating from the rule of the law of the State of the opening of proceedings, enables the law of the Member State on whose territory the asset in question is situated (the lex rei sitae) 25 to be applied to the right in rem of a creditor or a third party in respect of certain assets belonging to the debtor. Protection under Article 5 is given only to rights in rem in respect of a debtor s assets which are 20 I would point out that Article 5 of Regulation No 1346/2000 assumes the non-fraudulent location of the assets in a Member State other than the State of the opening of the insolvency proceedings. See, on this point, paragraph 105 of the Virgós/Schmit report and Ingelmann, T., Article 5, European Insolvency Regulation, K. Pannen (Ed.), De Gruyter Recht, Berlin, 2007, p Paragraph 97 of the Virgós/Schmit Report. See also Moss, G., Fletcher, I.F., and Isaacs, S., Moss, Fletcher and Isaacs on the EC Regulation on Insolvency Procedures, Oxford University Press, 3rd edition, 2016, p Paragraph 97 of the Virgós/Schmit report 23 See, to that effect, Virgós, M., and Garcimartín, F., op. cit., p Judgment of 5 July 2012, ERSTE Bank Hungary (C-527/10, EU:C:2012:417, paragraph 41). See also the judgment of 16 April 2015, Lutz (C-557/13, EU:C:2015:227, paragraph 27). 25 Judgment of 5 July 2012, ERSTE Bank Hungary (C-527/10, EU:C:2012:417, paragraph 42). ECLI:EU:C:2016:369 7

8 situated in a Member State other than the State of the opening of insolvency proceedings at the time when the proceedings are opened. 26 Article 5 of Regulation No 1346/2000 is not a conflict-of-laws rule but a negative 27 substantive rule, the purpose of which is to uphold rights in rem acquired before the opening of the insolvency proceedings It should nevertheless be clarified that, since the protection of the rights in rem of creditors and third parties, and hence their immunity, is relative, the exclusion of such rights from the scope of the lex fori concursus is not absolute First, the rule in Article 5(1) of Regulation No 1346/2000 does not preclude the liquidator from applying for secondary proceedings to be opened in the Member State in which the assets are situated if the debtor has an establishment in that Member State. 30 Such secondary proceedings would have the same effects on rights in rem as main proceedings. Article 5 of Regulation No 1346/2000 states that insolvency proceedings do not affect rights in rem in respect of assets situated in other Member States and not that the proceedings do not affect assets (or credit) located in another Member State that are protected by those rights. Since main proceedings are, in principal, universal, they encompass all the debtor s assets. That factor is important if the value of the security is greater than the value of the claim guaranteed by the right in rem. Where no secondary proceedings are opened, the creditor will be obliged to surrender to the liquidator in the main proceedings any surplus of the proceeds of sale (see recital 25 and Article 20 of Regulation No 1346/2000). However, if the claim is covered by the value of the security, a creditor who obtains satisfaction of claims guaranteed by rights in rem is not required to return anything to the other creditors Secondly, Article 5(4) of Regulation No 1346/2000 establishes an exception to the exception laid down in Article 5 and provides that paragraph 1 thereof does not preclude actions for voidness, voidability or unenforceability as referred to in Article 4(2)(m) of the regulation. 32 Thus, the lex fori concursus applies when the creation or exercise of rights in rem conflicts with the interests of the insolvency proceedings and when acts can be classified as acts detrimental to all the creditors interests. Article 5 therefore concerns not actions to set aside based on the rules of ordinary law (ordinary actions under civil and commercial law), 33 but actions to set aside based on the rules for insolvency proceedings. However, Article 13 of Regulation No 1346/2000 provides an exception to the 26 In order for Article 5 to function, a teleological interpretation of that provision requires that all the acts needed in order to create a right in rem must have been carried out before the opening of the insolvency proceedings. If the creation of a right in rem occurs after the proceedings have been opened, Article 4 of Regulation No 1346/2000 will apply. See paragraphs 95 and 96 of the Virgós/Schmit report, Virgós Soriano, M., and Garcimartín Alférez, F.J., op. cit., pp. 96 and 101, and Moss, G., Fletcher, I.F., and Isaacs, S., op. cit., pp. 171 and Regarding the substantive nature of that provision, see paragraph 90 of the Virgós/Schmit report, Virgós, M., and Garcimartín, F., op. cit., p. 163, Ingelmann, T., Article 5, op. cit., p. 250, Moss, G., Fletcher, I.F., and Isaacs, S., op. cit., p. 346; Hess, B., Oberhammer, P., and Pfeiffer, T., European Insolvency Law, The Heidelberg-Luxembourg-Vienna Report on the Application of the Regulation No 1346/2000/EC on Insolvency Proceedings, Beck-Hart-Nomos, C.H., Munich/Oxford, 2014, p. 178, and Klyta, W., Uznanie zagranicznych postępowań upadłościowych, Oficyna Wolters Kluwer business, Warsaw, 2008, p See also Haubold, J., Gebauer, M., and Wiedmann, T., Zivilrecht unter europäischem Einfluss, 2nd edition, Stuttgart, 2010, Chapter 32, paragraph In its judgment of 10 September 2009, German Graphics Graphische Maschinen (C-292/08, EU:C:2009:544, paragraph 35), with regard to Article 7 of Regulation No 1346/2000, a provision similar to Article 5 of the same regulation, the Court held that, in other words, that provision only constitutes a substantive rule intended to protect the seller with respect to assets which are situated outside the Member State of opening of insolvency proceedings. According to Hess, B., Oberhammer, P., and Pfeiffer, T., op. cit., the majority of legal scholars in 17 Member States treat Article 5 as a substantive rule (p. 181). 29 The protection may be absolute if the debtor has no establishment in the Member State in which the assets are situated. However, the rules relating to actions for voidness, voidability or unenforceability will apply. See points 32 and 33 below. 30 See, to that effect, Moss, G., Fletcher, I.F., and Isaacs, S., op. cit., p See also Article 27 of Regulation No 1346/ See, to that effect, paragraphs 99 and 173 of the Virgós/Schmit report and Virgós Soriano, M., and Garcimartín Alférez, F.J., op. cit., pp. 106 and 236. See also Moss, G., Fletcher, I.F., and Isaacs, S., op. cit, p. 348, and Porzycki, M., Zabezpieczenia rzeczowe w transgranicznym postępowaniu upadłościowym w Unii Europejskiej in Czasopismo kwartalne całego prawa handlowego, upadłościowego oraz rynku kapitałowego, No 3 (5) 2008, p See, on this point, the judgment of 16 April 2015, Lutz (C-557/13, EU:C:2015:227) and my Opinion in that case (C-557/13, EU:C:2014:2404). See also Article 7(3) of Regulation No 1346/ Those actions follow the general rules on conflict of laws. However, such actions under the rules of ordinary law are admissible only to the extent that the lex fori concursus allows for them. Virgós, M., and Garcimartín, F., op. cit., p ECLI:EU:C:2016:369

9 application of the lex fori concursus whereby the act at issue cannot be validly challenged where the person who benefited from an act detrimental to all the creditors provides proof that the said act is subject to the law of a Member State other than that of the State of the opening of proceedings, and that law does not allow any means of challenging that act in the relevant case Thirdly, and lastly, I would point out that Article 5 of Regulation No 1346/2000 cannot be relied on to improve the position of the holder of a right in rem as regards other preferential rights outside the context of insolvency proceedings. In other words, Article 5 recognises a separate right to enforcement of rights in rem, but does not alter the system of preferential rights, which cannot be affected by rights in rem outside the context of insolvency proceedings Limits on the national classification of rights as rights in rem for the purposes of Article 5 of Regulation No 1346/ As regards the classification of rights as rights in rem, I would immediately observe that Regulation No 1346/2000 refers to national law, subject to the provisions of Article 5(2) and (3) of the regulation As I explained in points 34 and 35 of my Opinion in Lutz, 37 the classification of a right with regard to Article 5 of Regulation No 1346/2000 is a process that involves two distinct phases. 38. First, it is necessary to consider whether the classification of a right as a right in rem depends on the national law which, under the conflict-of-laws rules applying prior to the insolvency proceedings, governs rights in rem (normally, the lex rei sitae). 38 The creation, validity and scope of such rights in rem are therefore governed by the law of the place where the asset which forms the subject of the right in rem is situated Secondly, once the actual nature of the right considered with regard to the lex rei sitae has been established, it is necessary to determine whether that right satisfies the criteria for the application of Article 5(2) and (3) of Regulation No 1346/2000. Those independent classification criteria 40 therefore limit the national classification of a subjective right as a right in rem for the purposes of applying Article 5 of that regulation I would like to make a few further observations over and above those which I made in my Opinion in Lutz On the scope of Article 13 of Regulation No 1346/2000, see the judgment of 16 April 2015, Lutz (C-557/13, EU:C:2015:227, paragraphs 32 to 49) and my Opinion in that case (C-557/13, EU:C:2014:2404, points 56 to 61). 35 Virgós Soriano, M., and Garcimartín Alférez, F.J., op. cit., p I would point out that, for the purposes of Article 5 of Regulation No 1346/2000, paragraph 3 of Article 5 treats, directly and independently of national law, as a right in rem rights recorded in a public register and enforceable against third parties. That is, therefore, the only derogation in the regulation, within the context of Article 5, from the reference to the lex rei sitae. See paragraph 101 of the Virgós/Schmit report. See also Virgós Soriano, M., and Garcimartín Alférez, F.J., op. cit., p C-557/13, EU:C:2014: Ingelmann, T., Article 5, op. cit., p See paragraphs 95 and 100 of the Virgós/Schmit report. 40 See, in that regard, Veder, P.M., Cross-border insolvency proceedings and security rights: a comparison of Dutch and German law, the EC Insolvency Regulation and the UNCITRAL Model Law on Cross-Border Insolvency, Deventer, 2004, pp. 334 to 336: An independent interpretation of rights in rem is facilitated by the references that the second paragraph contains of the types of rights Art. 5 IR refers to. See, also, Klyta, W., op. cit., p See paragraph 100 of the Virgós/Schmit report. See also Virgós, M., and Garcimartín, F., op. cit., p C-557/13, EU:C:2014:2404. ECLI:EU:C:2016:369 9

10 41. First of all, according to the Virgós/Schmit report, the objective of Article 5(2) of Regulation No 1346/2000 is to facilitate the application of Article 5(1). As is clear from paragraphs 100 and 102 of that report, the function of Article 5(2) is to limit the national classification of rights as rights in rem for the purposes of the application of Article 5, albeit without imposing an independent definition of rights in rem I do not think that the fact that Regulation No 1346/2000 offers no such independent definition in any way means that it does not lay down certain limits on the concept of rights in rem for the purposes of the application of Article 5. As is indicated in paragraph 102 of the Virgós/Schmit report, it must be borne in mind that Article 5 represents an important exception as regards the application of the law of the State of the opening of proceedings and the universal effect of the main proceedings. In my opinion, on reading the report in its entirety it is clear that paragraphs 100 and 102 must be read together, inasmuch as they are mutually complementary. Inasmuch as the report provides useful guidance for the interpretation of Regulation No 1346/2000, 44 I question the utility of reading in isolation each of the various paragraphs which analyse Article 5 of the regulation (that is to say, paragraphs 94 to 106). 43. Secondly, I would observe that that same report emphasises the fact than an unreasonably wide interpretation of a national conception of rights in rem such as would include, for example, rights that are merely reinforced by a right to claim preferential payment, as is the case with a certain number of privileges, would render Article 5 of Regulation No 1346/2000 meaningless Thirdly, as regards the list given in Article 5(2) of Regulation No 1346/2000 of rights which, in principle, are regarded as rights in rem in the legal systems of the Member States, even though that list is not exhaustive, 46 the Virgós/Schmit report seems to acknowledge 47 that it was inspired by the fact that a right in rem is essentially characterised by two factors. 48 They are, firstly, a direct and immediate relationship with the asset it covers, which remains linked to its satisfaction, without depending on the asset belonging to a person s estate or on the relationship between the holder of the right in rem and another person and, secondly, the absolute nature of the allocation of the right to the holder [which] means that the person who holds a right in rem can enforce it against anyone who breaches or harms his right without his consent that the right can resist the alienation of the asset to a third party (it can be claimed erga omnes, with the restrictions characteristic of the protection of the bona fide purchaser) and that the right can thus resist individual enforcement by third parties and in collective insolvency proceedings (by its separation or individual satisfaction) Lastly, I would reiterate that Article 5(1) of Regulation No 1346/2000 provides that the opening of insolvency proceedings does not affect the rights in rem of creditors or third parties in respect of specific assets or collections of indefinite assets as a whole which change from time to time. In other words, for the purposes of Article 5, it is possible for a right in rem to be established not only in respect of specific assets, but also in respect of assets as a whole Virgós, M., and Garcimartín, F., op. cit., p. 96: Its function [i.e. that of Article 5] is to operate as a limit to the characterisation of a right as a right in rem for the purposes of Article 5. Only those rights conferred by national laws that conform to its typological characterisation are protected by Article 5.1 of Regulation. 44 See footnote 11 to this Opinion. 45 Paragraph 102 of the Virgós/Schmit report. 46 The rights referred to in paragraph 1 shall in particular mean. My emphasis. 47 See paragraph 103 of the report. 48 The report also refers to paragraph 166 of the Report on the Convention of 9 October 1978 on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice (OJ 1979 C 59, p. 71). 49 Paragraph 103 of the Virgós/Schmit report and Moss, G., Fletcher, I.F., and Isaacs, S., op. cit., p Such is the case with floating charges recognised in United Kingdom and Irish law, which may therefore be regarded as rights in rem for the purposes of Regulation No 1346/2000. See paragraph 104 of the Virgós/Schmit report and Moss, G., Fletcher, I.F., and Isaacs, S., op. cit., p ECLI:EU:C:2016:369

11 46. It is therefore in the light of those considerations that I shall examine the classification of a public charge on immovable property, such as that at issue in the main proceedings, for the purposes of Article 5 of Regulation No 1346/2000. a) The classification of a public charge on immovable property under the law of the place where the asset in question is situated (the lex rei sitae) 47. I should point out first of all that the referring court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. 51 Consequently, it is for the referring court to establish whether, under national law, such a public charge on immovable property is a right in rem. 48. In so far as concerns the case in the main proceedings, it is clear from the order for reference that, under German law, that being the law of the place where the immovable property in question is situated, the real property tax debts which led to the order for compulsory sale constitute, in accordance with Paragraph 12 of the GrStG, public charges on immovable property that are rights which may be enforced in rem, inasmuch as the owner of the property must, pursuant to the first sentence of Paragraph 77(2) of the Tax Code, submit to enforcement against the property. 52 According to the referring court, they correspond to a lien on immovable property and are not entered in the land register. 49. The referring court states that, pursuant to Paragraph 9(2) of the GrStG, the property tax arises at the beginning of the year. Thus, in the present case, all of the debt relating to the period from 1 October 2012 to 5 May 2013 arose before the opening of the insolvency proceedings and is therefore covered by the charge on immovable property. Like a mortgage, that charge is accessory to the claim it secures because it is dependent on the existence of a tax debt. However, according to the referring court, it does not necessarily mean that the owner himself owes the tax and is personally liable for it. Indeed, to the extent that the debt is due and enforceable, the charge will continue to exist if the real property is sold after the assessment of the tax debt. In the course of insolvency proceedings, the tax authorities enjoy, on the basis of the public charge on immovable property, the right to obtain satisfaction separately and preferentially. 53 Accordingly, they may apply for the compulsory sale of the property, as they have done in this case. 50. It is clear from the order for reference that, under German law, a public charge on a taxable property is a guarantee in rem. Consequently, since the referring court has clearly established the lege causae, the question arises of whether the charge on immovable property at issue in the main proceedings may be classified as a right in rem for the purposes of Article 5 of Regulation No 1346/ In order to answer that question it is necessary to ascertain whether the independent classification criteria indicated in Article 5(2) and (3) of Regulation No 1346/2000 are fulfilled (see points 41 to 45 of this Opinion). 51 Judgment of 25 October 2012, Rintisch (C-553/11, EU:C:2012:671, paragraph15). 52 According to the referring court, even though the GrStG does not define the concept of public charges on immovable property, there is a consensus that they constitute an obligation to pay which is based on public law and must be satisfied by means of a single pecuniary payment or periodic pecuniary payments and which entails not only the personal liability of the debtor but also an in rem guarantee of the property. My emphasis. 53 It is also clear from the order for reference that, pursuant to Paragraph 10(1)(3) of the Law on compulsory sale, in a compulsory sale procedure, claims for the payment of property tax enjoy a priority in so far as concerns current-year liabilities and arrears accrued in the last two years. When the proceeds of sale are distributed, such claims enjoy a higher priority than liens on immovable property in favour of lenders, such as mortgages and land charges. ECLI:EU:C:2016:369 11

12 b) Classification of the public charge on immovable property for the purposes of Article 5 of Regulation No 1346/ First of all, as is clear from Article 5(2)(a) of Regulation No 1346/2000, rights in rem include the right to dispose of assets or have them disposed of and to obtain satisfaction from the proceeds of or income from those assets, in particular by virtue of a lien or a mortgage. According to the referring court, a public charge on immovable property, such as that at issue in the main proceedings, corresponds to a lien over immovable property. Consequently, protection for the holder of such a right, in this case the tax authorities, is, in principle, afforded by the right of enforcement against the immovable property of the debtor company, in accordance with the first sentence of Paragraph 77(2) of the Tax Code. Indeed, it is clear from the order for reference that, in the course of insolvency proceedings, the tax authorities enjoy, on the basis of the public charge on immovable property, the right to obtain satisfaction separately and preferentially, in accordance with Paragraph 49 of the Insolvenzordnung (German Insolvency Code) Secondly, it is also clear from the order for reference that, account being taken of the list set out in Article 5(2) of Regulation No 1346/ and of the independent classification criteria described in the Virgós/Schmit report and mentioned in point 44 of this Opinion, a public charge on immovable property under Article 12 of the GrStG indeed possesses the two essential characteristics of a right in rem: first, it has a direct and immediate relationship to the property itself, without depending on whom the property belongs to or on the relationship between the holder of the right and another person and, secondly, it is absolute in nature, that is to say, the holder of the right can enforce it against anyone who breaches or harms it without his consent, it can resist the alienation of the property to a third party and can also resist individual enforcement and in collective insolvency proceedings, by separation from the total assets, which is the corollary of the right, or individual satisfaction. c) Interim conclusion 54. It is absolutely clear from the information provided by the referring court that, under German law, which is the national law of the place where the immovable property is situated (the lex rei sitae), the public charge on immovable property at issue in the main proceedings is an in rem guarantee in respect of the immovable property in question. Indeed, according to the referring court, that charge resists alienation [of the property], is enforceable against third parties and establishes a right to separation in the event of insolvency proceedings. Consequently, such a charge meets the criteria for the application of Article 5(2) of Regulation No 1346/ I would also observe that, according to the referring court, the charge on real property in question also possesses the essential characteristics of a right in rem as described in the Virgós/Schmit report. 56 Nevertheless, it considers that clarification from the Court is needed on whether that conclusion is compatible with the objective of Article 5 of Regulation No 13436/2000 and with the overall concept of that regulation. 54 In this connection, the referring court states that this type of land charge is different from a preferential right under legal systems based on Roman law, the holder of which can merely obtain satisfaction preferentially and which is said not to fall within the scope of Article 5 of Regulation No 1346/2000. My emphasis. 55 The referring court also refers to the concept of rights in rem which underlies Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which is also referred to in paragraph 103 of the Virgós/Schmit report. 56 See point 43 of this Opinion. 12 ECLI:EU:C:2016:369

13 3. The fiscal nature of the public charge on immovable property and the compatibility of the charge with Regulation No 1346/ The referring court notes that the fundamental objective of Article 5 of Regulation No 1346/2000 is to protect legitimate expectations and the certainty of transactions (recital 24). The regulation states that such protection is particularly necessary in the case of rights in rem, since these are of considerable importance for the granting of credit. However, the interests of tax authorities are different in many respects from those of private lenders According to the Commission, which proposes that the question referred should be answered in the negative, it is not sufficient for a right to be regarded as a right in rem under the lex rei sitae in order for Article 5 of Regulation No 1346/2000 to apply. Indeed, a mere reference could prove to be contrary to the principle of the exclusive application of the lex fori concursus (the law of the State of the opening of proceedings) provided for in Article 4 of the regulation. Article 5 of Regulation No 1346/2000 should therefore be interpreted strictly as a derogation from that principle The Commission adds that the objective pursued by Article 5 of Regulation No 1346/2000 justifies a narrow interpretation according to which only rights granted by a debtor to a creditor in the context of a commercial transaction should be regarded as rights in rem. However, that objective does not warrant the protection of tax authorities. Where, as in the case in the main proceedings, a public charge on immovable property takes precedence over the rights of lenders in a compulsory sale procedure, it could actually have the effect of penalising lenders, whereas the intention behind Article 5 of Regulation No 1346/2000 is to protect them. 59. The Spanish Government, on the other hand, which takes the view that the question referred should be answered in the affirmative, considers that, because of the diversity of the legal systems and legal traditions in the Member States, and in order to preserve the effet utile of the regulation, the EU legislature wished to determine which rights should, on account of their characteristics and on grounds of legal certainty, qualify for this exception, whether or not they are classified in the Member State that recognises them as rights in rem. According to the Spanish Government, that is the reason for which Article 5(2) of Regulation No 1346/2000 indicates that certain rights must be regarded as rights in rem for the purposes of Article 5(1). 60. It is therefore necessary to consider the following question: is the fiscal nature of the public charge on immovable property at issue in the main proceedings a decisive factor in finding that the objective pursued by Article 5 of Regulation No 1346/2000 does not warrant the protection of a public creditor, such as, in this case, the tax authorities. 61. I do not think it is. 62. First of all, in so far as the wording of Article 5 of Regulation No 1346/2000 is concerned, there is no indication in paragraphs 1 and 2 of Article 5 that the debt must be a private claim or that it must relate exclusively to a purely commercial transaction Secondly, as regards the objectives of Regulation No 1346/2000, the solution adopted in Article 5, as I explained in points 28 and 29 of this Opinion, was chosen not only on substantive grounds, such as the protection of trade in the Member State where the assets are situated, the legal certainty of rights over them and the legitimate expectations of creditors and third parties, but also on grounds of a procedural nature relating to the need to simplify and facilitate the administration of estates. It must 57 See point 16 of this Opinion. 58 The Commission refers in this connection to paragraph 97 of the Virgós/Schmit report, but does not mention other paragraphs of the report. 59 Ubi lex non distinguit, nec nos distinguere debemus. ECLI:EU:C:2016:369 13