Vol 13 (2016) - Issue 3

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Comité d’entreprise de Nortel Networks SA and others v Rogeau and others C-649/13, ECLI:EU:C:2015:384

Introduction
The European Court of Justice handed down an important preliminary ruling on 11 June 2015 regarding the EU Insolvency Regulation, deciding that both the courts seised of the main proceedings and of the secondary proceedings have concurrent jurisdiction to determine which assets fall within the scope of the secondary proceedings.

Jurisdiction under the EC Regulation
The EC Regulation No 1346/2000 of 29 May 2000 determines which courts of the European Union have jurisdiction with respect to insolvency proceedings. The Regulation provides that the courts of the member state where the debtor’s centre of main interests are located shall open the 'main proceedings', but that the courts of another member state may open 'secondary proceedings' but only with respect to assets within that jurisdiction. Accordingly, the relevant provisions of the Regulation are as follows. Firstly, Article 3 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 effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.'

Article 25 provides for the recognition and enforceability of judgments:

'1. Judgments handed down by a court whose judgment concerning the opening of proceedings is recognised … and which concern the course and closure of insolvency proceedings, and compositions approved by that court shall also be recognised with no further formalities. Such judgments shall be enforced in accordance with Articles 31 to 51, with the exception of Article 34(2), of the … Convention [of 27 September 1968] on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters ...
The first subparagraph shall also apply to judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court.
...
2. The recognition and enforcement of judgments other than those referred to in paragraph 1 shall be governed by the Convention referred to in paragraph 1, provided that that Convention is applicable ...'

Finally, Article 27 provides with respect to the opening of proceedings:

'The opening of the proceedings referred to in Article 3(1) by a court of a Member State and which is recognised in another Member State (main proceedings) shall permit the opening in that other Member State, a court of which has jurisdiction pursuant to Article 3(2), of secondary insolvency proceedings … Their effects shall be restricted to the assets of the debtor situated within the territory of that other Member State.'