Vol 15 (2018) - Issue 3

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Current Case Law of the European Court of Justice Regarding Insolvency-Related Ancillary Claims/Proceedings

1. Introduction
At the very latest since the decision in Seagon v Deko Marty, the European Court of Justice (hereinafter: 'ECJ') has extended the (international) jurisdiction of the court of the insolvency opening state through an ‘annex competence’ also to so-called insolvency-related 'ancillary claims/proceedings'. On the one hand and with reference to Article 1(2)(b) of the Brussels I Regulation and the exceptions for ‘bankruptcies, settlements and similar proceedings’ set out therein, it has been argued that such insolvency-related ancillary claims/ proceedings are not covered by the Brussels I Regulation. On the other hand, according to the European legislature, the Brussels I Regulation and the European Insolvency Regulation (hereinafter: 'EIR') should work seamlessly together.
The question of when an annex competence is to be assumed has been addressed in greater detail in a number of decisions of the ECJ. According to the ECJ, the decisive factor is whether the action in question originates directly from the insolvency proceedings ('immediacy') and is in close connection with it ('close connection'). This is the case, for example, for insolvency-related claw-back claims. In addition, an annex competence is regularly established by legal actions in connection with insolvency-related rights of separation and segregation as well as liability claims against managing directors.