EUCJ – judgment of 11 June 2015 – case C-649/13 – Comité d’entreprise de Nortel Networks A.O. – on the interpretation of articles 2, under g), 3, paragraph 2 and 27 of Regulation EC 1346/2000
The EUCJ has issued a judgment on 11 June 2015 upon referral of questions from the Versailles commercial court concerning jurisdiction for and the effects relating to assets concerned by secondary proceedings in the context of the EU “Insolvency Regulation” 1346/2000.
The EUCJ has divided the referred question into two separate parts: the first “relates to the allocation of international jurisdiction between the court hearing the main proceedings and the court hearing the secondary proceedings”.
On this first point, the Court first held that Regulation 1346/2000 was applicable, rather than Regulation “Brussels 1” 44/2001, based inter alia on the Court’s Nickel & Goeldner Spedition precedent (C-157/13, EU :C :2014 :2145). The Court also concludes that “the courts of the Member State in which secondary insolvency proceedings have been opened have jurisdiction, on the basis of Article 3(2) of Regulation No 1346/2000, to rule on the determination of the debtor’s assets falling within the scope of the effects of those proceedings.” (point 38) However, jurisdiction is to be exercised alternatively to that of the Member State of the opening of the main proceedings (point 46).
On the second part of the question, dealing with the law applicable to the determination of the assets of the debtor included in the scope of the effects of a secondary insolvency procedure, the Court holds that “the answer to the second part of the question referred is that the debtor’s assets that fall within the scope of the effects of secondary insolvency proceedings must be determined in accordance with Article 2(g) of Regulation No 1346/2000.” (point 55).
In the case at hand “(…) as regards the disputes before it, the referring court will have the task of establishing, first, whether the assets at issue, which do not appear capable of being regarded as tangible property, are property or rights ownership of or entitlement to which must be entered in a public register, or whether they must be regarded as being claims. Next, that court will have the task of determining, respectively, whether the Member State under the authority of which the register is kept is the Member State in which the secondary insolvency proceedings have been opened, namely the French Republic, or whether, as the case may be, the Member State within the territory of which the third party required to meet the claims has the centre of his main interests is the French Republic. It is only if one of those checks has a positive outcome that the assets at issue will fall within the secondary insolvency proceedings opened in France.” (point 54).
Link to the full decision: Link to full text of case C-649/13 on EUCJ website