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CJEU on law governing time limits for lodging claims in secondary insolvency proceedings in the case ALPINE BAU, C-25/20
Under Article 32(2) of the Regulation No 1346/2000 (the “old” Insolvency Regulation, now repealed by the Regulation 2015/848), “the liquidators in the main and any secondary proceedings shall lodge in other proceedings claims which have already been lodged in the proceedings for which they were appointed, provided that the interests of creditors in the latter proceedings are served thereby, subject to the right of creditors to oppose that or to withdraw the lodgement of their claims where the law applicable so provides”.
The Regulation No 1346/2000 does not expressly stipulate the point in time when the claims already lodged in the proceedings for which a liquidator has been appointed should be brought in such other proceedings. That being said, its Article 4, for the purposes of the main proceedings, and its Article 28, for the purposes of secondary proceedings, clarify that, unless otherwise provided for in the Regulation, the law of the State in which proceedings are opened (lex concursus) is to apply to all proceedings.
As put by AG Campos Sánchez-Bordona in his Opinion presented back in May, that is why, in the case ALPINE BAU, C-25/20, a Slovenian court asked the Court of Justice whether the liquidator in the main insolvency proceedings conducted in Austria, who is seeking to file, in secondary proceedings conducted against the same debtor in Slovenia, claims which he already filed in the former proceedings, is subject to the time limits (and the consequences of failure to comply with those time limits) laid down in Slovenian law.
A different interpretation that the referring court also put into consideration consists on the idea that the Regulation lays down, in Article 32(2), a special right for a liquidator to lodge claims in other insolvency proceedings without being bound by any time limit (see point 13 of the request available here).
Another rival interpretation seemed to be, at least in the light of point 28 of the Opinion, implicitly endorsed by the liquidator in the main insolvency proceeding in the written observations. According to that interpretation, the time limits for lodging claims in any other proceedings are determined in accordance with the lex concursus of the main proceedings.
Opinion of AG
In his Opinion, AG Campos Sánchez-Bordona pronounced himself in favor of the first interpretation and proposed to the Court to consider that where the liquidator for the main insolvency proceedings lodges claims in secondary proceedings, the time limits for the lodgement of those claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened.
Judgment of the Court
This Thursday, the Court delivered its judgment in the case at hand. In essence, the Court agreed with the answer proposed in the Opinion. More precisely, it held that Article 32(2) of the Regulation No 1346/2000, read in conjunction with Articles 4 and 28 of the Regulation (these two provisions did not, however, appear in the preliminary question, yet the Court seemingly considered it necessary to introduce them in its reading of the question and consequently in its answer, see paragraph 26 of the judgment), is to be interpreted as meaning that the time limits for the lodgement of the claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened (paragraph 42).
The judgment itself is all the more interesting as it also deals – and ultimately rejects – the other two interpretations mentioned above, at its paragraphs 34-40 and 41, respectively.
The judgment is available here, in French.
CJEU on multiple places of (habitual) residence under the Brussels II bis Regulation in the case IB, C-289/20
In its judgment delivered this Thursday in the case IB, C-289/20, the Court of Justice addresses the issue of multiple places of residence under the Brussels II bis Regulation in the context of a request for a preliminary ruling originating from the proceedings for a divorce.
As a reminder, the preliminary question referred to the Court in this case reads as follows:
Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of [the Brussels II bis Regulation] that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?
Opinion of AG
As reported back in July, AG Campos Sánchez-Bordona delivered his Opinion in this case. As there is no English translation of the Opinion yet, a short reminder of its essential findings does not seem redundant.
In essence, AG proposed to the Court to consider that under the Brussels II bis Regulation a spouse may have only one place of habitual residence (points 83 et 90). If, in fact, as the preliminary question presupposes, a spouse divides his life between two Member States, it has to be considered that he or she does not have a place of habitual residence within the meaning of Article 3 of the Regulation (point 98). If that leads ultimately to the situation where no forum within the EU can hear the case for a divorce, in order to remedy situations of denial of justice, the jurisdiction might be exceptionally attributed to the courts of one of the Member State where the spouse resides (points 100 and 101).
An English translation of the answer proposed in point 101 of the Opinion is also available at the EAPIL blog due to the courtesy of Marta Requejo Isidro.
Judgment of the Court
In its judgment, the Court also considered that while a spouse may have multiple places of residence, that person may have only one place of “habitual residence” within the meaning of Article 3(1)(a) of the Brussels II bis Regulation (paragraph 51).
Reminding that it is for the national court to establish the habitual residence of the spouse, taking account of all the circumstances of fact specific to each individual case (paragraph 52), the Court provided the referring court with some further guidance as to that task. A cursory lecture of the judgment seems to reveal a suggestion according to which, following that guidance and at least a priori, it should be possible to identify a single place of habitual residence of the spouse in the circumstances of the case at hand (paragraphs 61 and 62).
As noted in the previous post, in its points 100 and 101, the Opinion seemed to endorse a forum of necessity made available to the applicant through the interpretation of the Brussels II Regulation itself. The Court did not elaborate on that issue, confining itself to the interpretation of Article 3 of the Regulation, hinting on the aforementioned a priori suggestion as to the identification of the place of habitual residence.
The judgment is available here, in French.
[UPDATE: for a press release in English, click here].
Webinar: “UNIDROIT’s Projects and Technology”
The University of Turin and ILO International Training Centre’s Master in International Trade Law is pleased to announce that on Friday 10 December 2021 it will host a webinar (co-organised with UNIDROIT) on UNIDROIT’s Projects and Technology. The event will take place at 2.00 P.M. CET on Zoom via the following link: https://itcilo-org.zoom.us/j/84727714249?pwd=RC8vcFRibVZLY2pYRVpNQ0dza3JJdz09
The event will be introduced by Professor Silvia Ferreri (University of Turin). The speakers’ panel will be composed by Professor Anna Veneziano (Deputy Secretary-General, UNIDROIT, and University of Teramo), Professor Theresa Rodriguez de las Heras Ballel (University Carlos III, Madrid, and Roy Goode Scholar, UNIDROIT) and Dr. Philine Wehling (Legal Officer, UNIDROIT). Professor Cristina Poncibò (University of Turin) and Professor Gustavo Prieto (Ghent University) will participate as discussants.
Please find the event’s flyer below:
