Vol 9 (2012) - Issue 5

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Rastelli Davide e C Snc v Hidoux (in his capacity as liquidator appointed by the court for the company Mediasucre International) (Case C-191/10)

Introduction
On 15 December 2011, the European Court of Justice (the ‘ECJ’) handed down judgment in the matter of Rastelli Davide e C Snc v Hidoux (Case C-191/10). The case considers a tension between the rules of international jurisdiction contained in article 3 of Council Regulation (EC) 1346/2000 (the ‘Insolvency Regulation’) and the choice of laws rule contained in article 4 of the Insolvency Regulation. In particular, the ECJ considered whether domestic provisions in the law of the country where main proceedings are pending for joining foreign companies into a single, consolidated, domestic insolvency could be used to bypass the jurisdictional rules contained in article 3 of the Insolvency Regulation.

The facts
Article 3 of the Insolvency Regulation, dealing with international jurisdiction, provides:
'1. The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary.
2. Where the centre of a debtor’s main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State'.

The law applicable to insolvency proceedings is specified by article 4 of the Insolvency Regulations as follows:
'the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened …'
Article l. 621-2 of the French Commercial Code provides as follows:
'The competent court will be the Tribunal de commerce [Commercial Court] if the debtor is a trader or he is registered with the craftsmen’s register. The Tribunal de grande instance [High Court] shall be competent in other cases.
One or more other persons may be joined to opened proceedings where there property is intermixed with that of the debtor or the legal entity is a sham. The court that has opened the initial proceedings shall remain competent for this purpose'.

Rastelli Davide e C Snc v Hidoux was concerned with the latter part of Article L 621-2, which is aimed at the consolidation or amalgamation of certain insolvency proceedings. Mediasucre International had its centre of main interests in Marseilles in France. On 7 May 2007, the Tribunal de Commerce de Marseilles made an order placing Mediasucre in liquidation. Jean-Charles Hidoux was appointed liquidator of Mediasucre.
Rastelli was a company incorporated under the laws of Italy and whose registered office was in Robbio, Italy. Rastelli had no establishment in France within the meaning of article 3(2) of the Insolvency Regulation.
Following his appointment as liquidator of Mediasucre, Mr Hudoux brought proceedings against Rastelli before the Tribunal de Commerce de Marseilles. He requested that Rastelli be joined to the insolvency proceedings that had been opened against Mediasucre on the ground that the property of the two companies had been intermixed within the meaning of Article L 621-2 of the French Commercial Code.
The Tribunal de Commerce de Marseilles declined jurisdiction. Referring to article 3 of the Insolvency Regulation it held that Rastelli’s registered office was in Italy and it had no establishment in France. That judgment was set aside by the Cour d’Appel d’Aixen- Provence, on the grounds that the liquidator’s application was not intended to ‘open’ insolvency proceedings within the meaning of article 3 but to join Rastelli to the proceedings already opened against Mediasucre.