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

Like Regulation No 1215/2012, Regulation No 2015/848 lays down the mechanism for judgments opening insolvency proceedings in one Member State to be automatically recognized by all the other Member States of the EU. In effect, the judgment opening the main proceedings produces the same effects in any other Member State as under the law of the opening State, without other formality (Article 20(1)),  …

Effects of recognition

Like Regulation No 1215/2012, Regulation No 2015/848 lays down the mechanism for judgments opening insolvency proceedings in one Member State to be automatically recognized by all the other Member States of the EU. In effect, the judgment opening the main proceedings produces the same effects in any other Member State as under the law of the opening State, without other formality (Article 20(1)), and in particular, without the need for notice or publicity being given to creditors . 

Article 19(1) of Regulation No 2015/848 establishes the principle of universality of proceedings pursuant to which the decision to open insolvency proceedings handed down by a court of a Member State is recognized in all the other Member State from the time that it becomes effective in the State of the opening of proceedings. No court other than the court which has jurisdiction under Article 3 can open the main proceedings against the same debtor but the application of that principle does not preclude the opening of secondary proceedings in other Member States under certain conditions (Article 19(2); Articles 34 to 52) . Article 19(1) further sets out a priority rule based on a chronological criterion to the benefit of the opening judgment which was handed down first. This priority principle, inter alia, prevents the European authorities from pursuing their claims against undertakings in proceedings brought before the European courts since they would enjoy an unjustifiable advantage over the other creditors who are not authorized to initiate proceedings before the national courts . 

The priority rule is based on the principle of mutual trust under which the Member States have agreed to the establishment of a compulsory system of jurisdiction and accordingly have waived their internal rules of recognition. The principle of mutual trust that the Member States grant to their legal systems implies that the court of a Member State seized of an application for opening of main insolvency proceedings checks its jurisdiction in view of Article 3(1) of the regulation, i.e. assesses whether the center of the debtor's main interests is situated within his national territory. In return, the main insolvency proceedings opened by that court are recognized by the courts of the other Member States, without the latter being able to review the jurisdiction of the court of the opening State  or to order enforcement measures relating to the assets of the debtor declared insolvent that are situated in their territory when the legislation of the State of the opening of proceedings does not so permit . The principle of mutual trust further assumes that any party who wishes to challenge the jurisdiction assumed by the court of the opening State on the ground that the center of the debtor's main interests is situated in another Member State, uses the remedies prescribed by the national law of the opening State . 

Under Article 32(1) of Regulation No 2015/848, judgments handed down by a court whose judgment concerning the opening of proceedings is recognized in accordance with Article 19 and which concern the course and closure of insolvency proceedings, and compositions approved by that court, are also recognized with no further formalities and enforced in accordance with Articles 39 to 44 and 47 to 57 of Regulation No 1215/2012. That provision also applies to judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court  and  to judgments relating to preservation measures taken after the request for the opening of insolvency proceedings or in connection with it. The recognition and enforcement of judgments other than those referred to in paragraph 1 of Article 32 are governed by Regulation No 1215/2012 if applicable. The Court of justice has ruled that Article 32(1) cannot be interpreted in such a way as to call into question the exclusive nature of the international jurisdiction of the courts of the Member State within the territory of which the insolvency proceedings were opened to hear actions which derive directly from those proceedings and which are closely connected with them nor as a mechanism for conferring international jurisdiction on a court other than the one which enjoys that exclusive jurisdiction . 

Case C-294/02 Commission v AMI Semiconductor Belgium and others [2005] ECR I-2175, LawLex200900001420JBJ.

Case C-444/07 MG Probud Gdynia [2010] ECR I-417, LawLex201100000341JBJ: only the opening of secondary insolvency proceedings is capable of restricting the universal effect of the main insolvency proceedings.

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

Case C-444/07 MG Probud Gdynia [2010] ECR I-417, LawLex201100000341JBJ.

Article 32(1), which provides for a simplified system for the recognition and enforcement of judgments opening proceedings, allows for the possibility that the courts of a Member State within the territory of which insolvency proceedings have been opened pursuant to Article 3(1) of that regulation may also hear and determine an action which derives directly from those proceedings and is closely connected with them, whether that be the court which opened the insolvency proceedings under Article 3(1), or another court of that same Member State having territorial and substantive jurisdiction, see Case C-493/18 UB v VA, Tiger SCI, WZV, Judgment of 4 December 2019, LawLex201900001479JBJ. 

 Case C-493/18 UB v VA, Tiger SCI, WZV, Judgment of 4 December 2019, LawLex201900001479JBJ.

European Business Law

385. Effects of recognition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

385. Effects of recognition

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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