European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

In line with the Recommendation on a new approach to business failure and insolvency, the Commission has given Regulation No 2015/848 an extended scope of application. It is thus extended to proceedings which promote the rescue of economically viable but distressed businesses and which give a second chance to entrepreneurs, in particular to proceedings which provide for restructuring of a debtor a …

Scope ratione materiae and ratione temporis

In line with the Recommendation on a new approach to business failure and insolvency, the Commission has given Regulation No 2015/848 an extended scope of application. It is thus extended to proceedings which promote the rescue of economically viable but distressed businesses and which give a second chance to entrepreneurs, in particular to proceedings which provide for restructuring of a debtor at a stage where there is only a likelihood of insolvency, and to proceedings which leave the debtor fully or partially in control of its assets and affairs, and to proceedings providing for a debt discharge or a debt adjustment in relation to consumers and self-employed persons (recital 10). Like Regulation No 1346/2000, it applies to collective insolvency proceedings based on the debtor's insolvency which entails the partial or total divestment of a debtor and the appointment of a liquidator  (Article 1(1)(a)), proceedings in which the assets and affairs of a debtor are subject to control or supervision by a court known as “debtor in possession” proceedings (Art. 1(1)(b) and proceedings granting a temporary stay of individual enforcement, on condition that they provide for suitable measures to protect the general body of creditors and, where no agreement is reached, are preliminary to one of the two other proceedings (Art. 1(1)(c)). Annex A, which sets out a list of national insolvency proceedings to which the regulation applies, includes around twenty additional proceedings. Annex B which previously set out the liquidation proceedings covered by the regulation, now lists the insolvency practitioners for each Member State. By defining collective proceedings in Article 2(1) as “proceedings which include all or a significant part of a debtor's creditors, provided that, in the latter case, the proceedings do not affect the claims of creditors which are not involved in them” , the regulation now takes into consideration partial collective proceedings.

Regulation 2015/848 contains the same exclusions as its predecessor. Article 1(2) excludes from its scope of application insolvency proceedings concerning insurance undertakings, credit institutions, investment undertakings which provide services involving the holding of funds or securities for third parties, and collective investment undertakings. 

In order to settle the recognition and enforcement of decisions other than those directly relating to the opening of insolvency proceedings, Article 32 lists judgments which fall within the scope of application of Regulation No 2015/848 - i.e. judgments which concern the course and closure of insolvency proceedings given by the court which opened the proceedings, and compositions approved by that court, judgment deriving directly from the insolvency proceedings and which are closely linked with them , even if they were handed down by another court, and all judgments relating to preservation measures taken after the request for the opening of insolvency proceedings -, as well as those which are excluded - i.e. judgments not referred to in paragraph 1 -, by specifying that these exclusions fall within Regulation No 1215/2012, where it is applicable.

e material scope of application of Regulation No 2015/848 is strictly interpreted and is limited to provisions governing the jurisdiction for the opening of insolvency proceedings and the giving of judgments which derive directly from the insolvency proceedings and which are closely linked with them, while the material scope of application of Regulation No 1215/2012 is subject to more liberal interpretation in accordance with the will of the European legislator to retain a broad conception of the concept of “civil and commercial matters”. An action is related to bankruptcy or winding-up if it derives directly from the bankruptcy or winding-up and is closely connected with the proceedings. This is also the case for an action brought by the liquidator in the insolvency proceedings against the managing director of the debtor for reimbursement of payments which were made after the company became insolvent or after it had been established that the company's liabilities exceeded its assets, where the right or the obligation which forms the basis of the action finds its source in the common rules of civil and commercial law or in the derogating rules specific to insolvency proceedings .  Likewise, an action brought by the trustee in bankruptcy appointed by a court of the Member State within the territory of which the insolvency proceedings were opened seeking a declaration that mortgages registered over immovable property situated in another Member State and the sale of that property are ineffective as against the bankruptcy estate, derives directly from those proceedings, is closely connected with them and falls within the exclusive jurisdiction of the courts of the Member State in which the insolvency proceedings were opened . This is not the case, however, for an action brought by a seller based on a reservation of title against a purchaser who is insolvent, where the asset covered by the reservation of title is situated in the Member State of the opening of the insolvency proceedings, where it is not based on the law of insolvency proceedings and requires neither the opening of proceedings of that kind, nor the action of a liquidator . Neither is it the case for an action for the payment of goods delivered under a contract concluded before the opening of the insolvency proceedings, brought by the liquidator of a bankrupt company established in a Member State against the other party to the contract established in a different Member State, insofar as such an action may be brought independently of any insolvency proceedings and it does not fall within the exclusive powers of the liquidator  or for an action for damages for unfair competition by which the assignee of part of the business acquired in the course of insolvency proceedings is accused of misrepresenting itself as being the exclusive distributor of articles manufactured by the debtor, as, even if there is a link between the action in the main proceedings and the insolvency proceedings, that link is neither sufficiently direct nor sufficiently close so as to rule out Regulation No 1215/2012 and consequently to make Regulation No 2015/848 applicable 

Lastly, the temporal scope of application of Regulation No 2015/848 is governed by Article 84 which sets forth that the regulation applies only to proceedings opened after 26 June 2017, and acts done by a debtor before the entry into force continue to be governed by the law which was applicable to them at the time they were done. For proceedings opened prior to that date, Regulation No 1346/2000 continues to apply.  According to the Court of Justice, the regulation must apply where no judgment opening insolvency proceedings was delivered prior to its entry into force, even if the request for opening judgment was filed before that date . The regulation applies to proceedings opened in respect of real property situated in the territory of a Member State before its accession to the European Union .

A decision to open insolvency proceedings based on the debtor's insolvency following an application seeking the opening of proceedings referred to in Annex A of  Regulation 2015/848 constitues a decision to open insolvency proceedings, where that decision involves the divestment of the debtor and the appointment of a liquidator, even a provisional liquidator: Case C-341/04 Eurofood IFSC [2006] ECR I-3813, LawLex200900000401JBJ. 

Regulation No 2015/848, recital 14: "The collective proceedings which are covered by this Regulation should include all or a significant part of the creditors to whom a debtor owes all or a substantial proportion of the debtor's outstanding debts provided that the claims of those creditors who are not involved in such proceedings remain unaffected. Proceedings which involve only the financial creditors of a debtor should also be covered. Proceedings which do not include all the creditors of a debtor should be proceedings aimed at rescuing the debtor. Proceedings that lead to a definitive cessation of the debtor's activities or the liquidation of the debtor's assets should include all the debtor's creditors. Moreover, the fact that some insolvency proceedings for natural persons exclude specific categories of claims, such as maintenance claims, from the possibility of a debt-discharge should not mean that such proceedings are not collective".

Case C-339/07 Seagon [2009] ECR I-767, LawLex200900002317JBJ: The action to set a transaction aside intended to increase the assets of the undertaking which is the subject of insolvency proceedings and which may be brought by the liquidator only, falls within the material scope of application of Regulation No 1346/2000.

Case C-295/13 H v HK, Judgment of 4 December 2014, LawLex201400001396JBJ.

Case C-493/18 UB, Judgment of 4 December 2019, LawLex201900001479JBJ.

Case C-292/08 German Graphics Graphische Maschinen [2009] ECR I-8421, LawLex201100000472JBJ.

Case C-198/18 CeDe Group AB, Judgment of 20 March 2018, LawLex202000001660JBJ.

Case C-641/16 Tünkers France, Judgment of 9 November 2017, LawLex201700001811JBJ.

Case C-1/04 Staubitz-Schreiber [2006] ECR I-701, LawLex200900000269JBJ.

Case C-527/10 ERSTE Bank Hungary Nyrt, Judgment of 5 July 2012, LawLex201400000210JBJ.

European Business Law

383. Scope ratione materiae and ratione temporis

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

383. Scope ratione materiae and ratione temporis

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise