Vol 14 (2017) - Issue 3

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Case Note on the Decision of the European Court of Justice in ENEFI, dated 9 November 2016 – C 212/15

Facts
On 13 December 2012 insolvency proceedings, as contained within Annex A of the European Insolvency Regulation (EIR), were opened over the assets of ENEFI in Hungry. At this time ENEFI possessed an establishment in Romania. The Romanian regional public finance authority DGRFP Bras .ov (DGRFP) was notified of the opening of proceedings on 7 January 2013, who then registered two claims in January 2013.
In the meantime, DGRFB carried out a tax inspection and determined that ENEFI’s Romanian establishment was liable to pay outstanding VAT. DGRFB issued a tax notice, but did not register this as a claim within the insolvency proceedings of ENEFI. Initially, ENEFI did not challenge the tax notice. Consequently, on 7 August 2013, an enforcement order was issued against it by DGRFP, which subsequently initiated enforcement proceedings in Romania. Prior to the closure of the insolvency proceedings in Hungary on 7 September 2013, ENEFI brought an action against the enforcement initiated in Romania.
It took the view that it was not obliged to pay the VAT owed, as indicated by the tax notice. It further argued that the associated enforcement was illegal, given that, on the date on which the tax inspection leading to the issuance of the tax notice occurred, ENEFI had already been the subject of insolvency proceedings opened in Hungary. Under Hungarian law, which according to ENEFI was conclusive due to Article 4(1) of the EIR, claims not registered in the context of insolvency proceedings are, in principle, forfeited.
The matter was brought before the Regional Court of Mures ̨ in Romania, which stayed the proceeding and referred the following two questions to the European Court of Justice (ECJ) for a preliminary ruling:
– 'For the interpretation of Articles 4(1), 4(2)(f) and 4(2)(k) of the EIR, as to whether the effects of the insolvency proceedings governed by the law of the State in which proceedings are opened may include the forfeiture of the right of a creditor, and whether a creditor who has not taken part in the insolvency proceedings has the right to pursue their claim in another Member State or whether enforcement of that claim is suspended in that other Member State?'
– 'Is it relevant that the claim pursued by means of enforcement in a Member State other than the State in which the proceedings are opened is a fiscal claim?'