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

The first paragraph of Article 3(1) of Regulation No 2015/848 provides that, “the courts of the Member State within the territory of which the center of a debtor's main interests is situated shall have jurisdiction to open insolvency proceedings” . By virtue of that provision, the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction to  …

Rules of jurisdiction

The first paragraph of Article 3(1) of Regulation No 2015/848 provides that, “the courts of the Member State within the territory of which the center of a debtor's main interests is situated shall have jurisdiction to open insolvency proceedings” . By virtue of that provision, the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction to hear actions which derive directly from those proceedings and which are closely connected to them , such as an action to set a transaction aside by virtue of insolvency that is brought against a person whose registered office is in another Member State  or in a third country . It retains exclusive jurisdiction to open insolvency proceedings where the center of the debtor’s main interests is moved to another Member State after the application has been lodged, but before that court has delivered a decision on it . However, the courts of the Member State which has initiated the main insolvency proceedings against a company on the basis that the latter's center of main interests is situated within the territory of that State may, pursuant to a rule of its national law relating to the confusion of assets and liabilities, only extend those proceedings to a second company situated in another Member State, if it is established that the center of main interests of the latter is situated in the first Member State . 

For companies and legal persons, the center of their main interests is presumed to be the place of the registered office in the absence of proof to the contrary (Article 3(1) paragraph 2). Confirming the case law of the Court of Justice , Regulation No 2015/848 provides that “the center of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties”. A rebuttal of the presumption laid down by the EU legislature is possible where, from the point of view of third parties, the company's central administration is not located in the place of its registered office . Such is the case where factors which are both objective and ascertainable by third parties , such as the places in which the debtor company pursues economic activities and those where it possesses goods, make it possible to establish that the actual situation is different from that which the location at that registered office is deemed to reflect . The presence of company assets and the existence of contracts for the financial exploitation of those assets in a Member State other than that in which the registered office is situated can only be regarded as sufficient factors to rebut the presumption if a comprehensive assessment of all the relevant factors makes it possible to establish, in a manner that is ascertainable by third parties, that the company’s actual center of management and supervision and of the management of its interests is located in that other Member State. On the other hand, the mere fact that the economic choices of a company are or can be controlled by a parent company in another Member State is not enough to rebut the presumption . From a temporal point of view, generally the place in which the center of the debtor's main interests is situated at the time when the debtor lodges the request to open insolvency proceedings determines the competent court. Under Regulation No 1346/2000, the Court of Justice considered that in the event of a transfer of the center of the debtor's main interests after the request to open insolvency proceedings but before the opening of the proceedings, the courts of the Member State on the territory of which the center of main interest was situated at the time when the request to open insolvency proceedings was lodged, retain jurisdiction to open those proceedings . Bankruptcy proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings to winding-up, judicial arrangements, compositions and analogous proceedings even in the case where the registered office is transferred before a request to open insolvency proceedings is lodged, the center of the debtor's main interests is therefore presumed to be located at the place of the new registered office. The courts of the Member State within the territory of which the new registered office is located, in principle, have jurisdiction to open the main insolvency proceedings, unless the presumption in paragraph 2 of Article 3(1) of the regulation is rebutted by evidence that the center of main interests has not followed the change of registered office . The new regulation also expressly  provides that “This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.” (Art. 3(1), paragraph 2).

Regulation No 2015-848 lays down a presumption in favor of natural persons which varies depending on whether the natural person exercises an independent business or a professional activity. If so, the center of main interests is presumed to be that individual's principal place of business in the absence of proof to the contrary (Art. 3(1) paragraph 3. The notion of “place of principal activity” of a natural person exercising a liberal profession or other self-employed activity does not correspond to the notion of “establishment” defined in Article 2(10) of the Regulation .

For all other individuals  the center of main interests shall be presumed to be the place of the individual's habitual residence (Art 3(1) paragraph 4). For independent businesses, the presumption only applies if the individual's principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings and for any other individual, if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.  

Where the debtor possesses an establishment within the territory of  another Member State, proceedings may be opened in that State but the effects of those proceedings are restricted to the assets of the debtor situated in that territory (Art. 3, paragraph 2). The term “establishment” within the meaning of Article 3(2) of the regulation requires the presence of a structure consisting of a minimum level of organization and a degree of stability necessary for the purpose of pursuing an economic activity and the presence alone of goods in isolation or bank accounts does not, in principle, meet that definition . Territorial insolvency proceedings no longer have to be winding-up proceedings as was the case under Regulation No 1346/2000 . They now constitute “secondary” proceedings . The courts of the Member State in which secondary insolvency proceedings have been opened have jurisdiction, concurrently with the courts of the Member State in which the main proceedings have been opened, to rule on the determination of the debtor's assets falling within the scope of the effects of those secondary proceedings pursuant to the provisions of Article 2 which provides that the Member State in which assets are situated is, in the case of tangible property, the Member State within the territory of which the property is situated, in the case of property and rights ownership, entitlement to which must be entered in a public register, the Member State under the authority of which the register is kept and, finally, in the case of claims, the Member State within the territory of which the third party required to meet them has the center of his main interests . Pursuant to Article 3(4), territorial insolvency proceedings  may only be opened prior to the opening of main insolvency proceedings where: 	“a) insolvency proceedings cannot be opened because of the conditions laid down by the law of the Member State within the territory of which the center of the debtor's main interests is situated; or b) the opening of territorial insolvency proceedings is requested by: (i) a creditor whose claim arises from or is in connection with the operation of an establishment situated within the territory of the Member State where the opening of territorial proceedings is requested; or (ii) a public authority which, under the law of the Member State within the territory of which the establishment is situated, has the right to request the opening of insolvency proceedings”. The conditions referred to in Article 3(4)(a), preventing the opening of main insolvency proceedings in that State only constitute substantive conditions relating to the capacity of the debtor and do not include conditions relating to the capacity of persons empowered to request the opening of such a procedure . The term “creditor” in Article 3(4)(b) which is used to designate the persons empowered to request the opening of territorial insolvency proceedings, does not include an authority of a Member State whose task under the national law of that State is to act in the public interest, but which does not intervene as a creditor, or in the name or on behalf of those creditors . On the other hand, the issue of who is empowered to request the opening of secondary proceedings after (and not prior to) the opening of main proceedings must be assessed on the basis of the national law of the Member State within the territory of which the opening of such proceedings is sought; however the right to seek the opening of secondary proceedings cannot be restricted to creditors who have their domicile or registered office within the Member State in whose territory the relevant establishment is situated, or to creditors whose claims arise from the operation of that establishment  .

The concept of the center of a debtor's main interests must be interpreted in a uniform way, independently of national legislation, by reference to European Union law: Case C-396/09 Interdil Srl [2011] ECR I-9915, LawLex201200000132JBJ.

Case C-339/07 Seagon v Deko Marty Belgium NV, [2009] ECR I-767, LawLex200900002317JBJ; Case C-394/22 O.W. Bunker (Netherlands) BV, Judgmentof 14November 2024, .

Case C-341/04 Eurofood IFSC, cited above.

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

Case C-501/23, Judgment of 19 September 2024, LawLex202400008219JBJ, which holds that it is presumed, in the absence of proof to the contrary, that the center of main interests of a natural person exercising a liberal profession or any other self-employed activity is located at that person's principal place of activity, even if that activity does not require any human means or assets.

Regulation No 2015/848, Art. 3(3): “Where insolvency proceedings have been opened in accordance with paragraph 1, any proceedings opened subsequently in accordance with paragraph 2 shall be secondary insolvency proceedings”.

Case C-649/13 Comité d'entreprise de Nortel Networks, Judgment of 11 June 2015, LawLex201500000734JBJ.

Case C-112/10 Procureur-generaal bij het hof van beroep te Antwerpen [2011] ECR I-11525, LawLex201400000203JBJ.

Case C-339/07 Seagon v Deko Marty Belgium NV, cited above.

Case C-327/13 Burgo Group, Judgment of 4 September 2014, LawLex201400000926JBJ.

Case C-328/12 Ralph Schmid v Lilly Hertel, Judgment of 16 January 2014, LawLex201400000035JBJ.

Case C-723/20 Hauck Aufhäuser Fund Services SA, Judgment of 24 March 2022, LawLex202200001880JBJ.

Case C-191/10 Rastelli Davide e, Judgment of 15 December 2011, LawLex201200000692JBJ.

Case C-341/04 Eurofood IFSC [2006] ECR I-3813, LawLex200900000401JBJ.

The center of a debtor's main interests must be identified by reference to criteria that are both objective and ascertainable by third parties, in order to ensure legal certainty and foreseeability concerning the determination of the court with jurisdiction to open the main insolvency proceedings. That requirement for objectivity and that possibility of ascertainment by third parties may be considered to be met where the material factors taken into account for the purpose of establishing the place in which the debtor company conducts the administration of its interests on a regular basis have been made public or, at the very least, made sufficiently accessible to enable third parties, that is to say in particular the company's creditors, to be aware of them, Case C-396/09 Interdil Srl [2011] ECR I-9915, LawLex201200000132JBJ.

Case C-396/09 Interdil Srl [2011] ECR I-9915, LawLex201200000132JBJ; along the same lines, CA Colmar, 20 June 2006, LawLex201000000329JBJ: while the carrying out of business in Germany does not exclude a registered address in France, the fixing of interests at a given address must nevertheless correspond to a verifiable reality. Also see CA Douai, 2 May 2006, Service des Impôts des Entreprises de Valenciennes La Rhônelle v. TLMI Ltd (Sté), LawLex201000000330JBJ: the center of main interests of the debtor, in the case of a company having its head office in Great Britain, but whose de facto manager and sole shareholder remains in France, whose commercial documents are all in French and whose office is in Valenciennes, is located in France and not in England.

European Business Law

384. Rules of jurisdiction

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Les notions juridiques connexes

384. Rules of jurisdiction

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise