Vol 3 (2006) - Issue 4

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The European Court of Justice Judgment in Eurofood IFSC Limited (in Liquidation)

1. Introduction

The European Court of Justice (the ‘ECJ’) delivered its judgment1 on the referral under Article 234 of the EC Treaty2 in relation to the dispute between the Irish and Italian courts on the interpretation of the European Insolvency Regulation3 (the ‘Regulation’) in the case of Eurofood IFSC Limited (In Liquidation) (‘Eurofood’) on 2 May 2006. In its judgment, the ECJ has endorsed the decision of Kelly J in the Irish High Court and Advocate General Jacobs’ opinion.4 The judgment confirms the Irish order winding up Eurofood and the appointment of Mr Pearse Farrell, Official Liquidator of Eurofood.

2. Background to the judgment

A chronology of the events leading to the judgment is set out below:

23 December 2003
the Italian parliament passed into law decree no. 347 providing for the extraordinary administration of companies with more than 1,000 employees and debts of no less than
EUR 1 billion.
24 December 2003
Parmalat SpA (‘Parmalat’) was admitted to extraordinary administration proceedings by the Italian Ministry of Productive Activities. Dr Bondi was appointed as extraordinary administrator.
27 December 2003
the Civil and Criminal Court of Parma confirmed that Parmalat was insolvent and placed it in extraordinary administration.
27 January 2004
Bank of America, a creditor of Eurofood, presented a petition for the winding up of Eurofood and appointment of Mr Farrell as provisional liquidator. On that date, the Irish High Court appointed Mr Farrell as provisional
liquidator of Eurofood with powers to take possession of all of its assets, to manage its affairs, to open a bank account in its name and to retain the services of its solicitors.
9 February 2004
the Italian Ministry of Productive Activities admitted Eurofood to the extraordinary administration of Parmalat.
10 February 2004
the Parma court made an order in which it acknowledged the filing of a petition to declare Eurofood insolvent and set the matter down for hearing for 17 February 2004.
13 February 2004
(Friday evening) the provisional liquidator received notification of the said hearing.
17 February 2004
the provisional liquidator filed a defence brief with the Parma court.
20 February 2004
the Parma court gave judgment which purported to open main insolvency proceedings
concerning Eurofood, declaring it to be insolvent, determining that its centre of main interests (the ‘COMI’) was in Italy.
23 March 2004
the Irish High Court, in a judgment delivered by Kelly J, held that the presentation of a petition for the winding up of Eurofood and the appointment of Mr Farrell as provisional liquidator by the High Court on 27 January 2004, brought about the opening of main insolvency proceedings for the purposes of the Regulation.