ALPINE BAU
Council Regulation of
Article 91 of Regulation 2015/848.
On the subject of Article 4(2)(h) of Regulation No 1346/2000, which is relevant to this case, see judgments of
Commentators agree that, as a result of its complexity, Article 32(2) does not apply de facto, which meant that it was not amended in Regulation 2015/848. See Koller, C. and Slonina, M.,
The law of the State of the opening of proceedings shall determine the conditions for the opening of those proceedings, their conduct and their closure. It shall determine in particular: …
Those two paragraphs relate to claims arising on the basis of legal acts which are open to challenge or have been challenged.
This paragraph deals with priority rights acquired in enforcement proceedings, on which the notice of the opening of insolvency proceedings has no effect.
This paragraph governs preferential rights which may be relied on out of court.
To whom I shall refer as
opened the secondary insolvency proceedings against that branch; informed the creditors and the liquidators that, pursuant to Article 32 of Regulation No 1346/2000, they had the right to lodge their claims in the main proceedings and in any secondary proceedings. This was set out in a notice published on the website of the Agencija Republike Slovenije za javnopravne evidence in storitve (Agency of the Republic of Slovenia for statutory public registers and related services) on the same date.
Point 68 et seq. of this Opinion.
There are nuances in the expressions used in the different language versions which help to define that term. The action carried out by the liquidator is described as:
Council document CONV/INSOL/X1.
The report is known by its authors’ names: M. Virgós and E. Schmit. It is dated
See, inter alia, the references to the report in the Opinions of the following Advocates General: Jacobs in
Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1346/2000 on insolvency proceedings, COM/2012/0744 final.
Other innovations are not relevant to the subject matter of this dispute: they concern the inclusion of
It takes elements from the
See recital 11 of Regulation No 1346/2000. The reasons for applying for secondary proceedings to be opened vary depending on who the applicant is; in this case, it was the liquidator in the main proceedings (NK).
Article 3(1) of Regulation No 1346/2000.
Article 3(2) of Regulation No 1346/2000.
The discussion concerning whether this also applies to creditors domiciled in third countries is not relevant to this case.
Recital 21 and Articles 32(1) and 39.
Recital 21 and Article 20(2).
Recital 21 and Article 31.
Recital 21 and Articles 31, 33, 34 and 37.
Some of those provisions concern the lodging of claims by foreign creditors and, to that extent, they are relevant to this case. However, none of those provisions deals with the question of time limits.
Article 4, for the purposes of the main proceedings, and Article 28, for the purposes of secondary proceedings. Conflict rules which derogate from the
Virgós Soriano, M. and Garcimartín Alférez, F.J.,
Unity of approaches, which is essential in order to bring collective proceedings, like insolvency proceedings, to a successful conclusion and to afford those involved certainty regarding their obligations and their rights. Facilitating the administration of the proceedings by ensuring that the forum and the law coincide. This also avoids costs associated with evidence and the application of foreign law. Ensuring that all creditors of the same debtor are, as regards their position in the body of creditors, subject to a single legal system in respect of each set of proceedings.
Judgment in
Article 32(1) and (2), which lays down directly applicable provisions relating to the submission of claims, is one of these.
Article 4(2)(h). As I have pointed out, Article 28, governing the law applicable to secondary insolvency proceedings, has the same scope.
Creditors have the right to lodge their claims in any main or secondary (or territorial, as the case may be) proceedings which are opened against the same debtor in a Member State bound by Regulation No 1346/2000. A creditor must assert that right in accordance with the law applicable to the proceedings in which he or she chooses to lodge the claim. The admission of a claim in one set of proceedings does not automatically mean that that claim will be admitted in other proceedings. The verification and admission of claims are subject to the law applicable to each set of proceedings. Judgment of
Pursuant to Article 32(2), there is no need for the creditors themselves to lodge the claims; instead, this can be done in their stead by the liquidator appointed for proceedings, in relation to claims already lodged in those proceedings. Virgós-Schmit Report, point 236. The report refers also to the aim of strengthening the influence of liquidators in other proceedings opened against the same debtor. The reality of that statement depends on the interpretation of Article 32(3), in relation to which uncertainty exists (see Maesch, S.C., and Knof, B., loc. cit., paragraphs 21 and 22). In particular, one of the disputed points is whether the liquidator’s right of participation in accordance with that article is conditional on the liquidator having notified the claims of the creditors he represents (Wessels, B., In accordance with Article 40, there is a duty to notify the opening of proceedings to all known creditors whose domicile, habitual residence or registered office is situated in a Member State other than that in which the proceedings are opened. Notification, by way of an individual notice, must have a minimum content which includes a reference to the time limits for the lodgement of claims and the consequences of failure to comply with those time limits. Other provisions in the same vein, such as those relating to the content of the lodgement of a claim (Article 41) and the languages of the notification (Article 42), are not relevant to this reference for a preliminary ruling.
That was one of the areas described as problematic in the Commission’s report on the application of Regulation No 1346/2000, to which I referred above. See, now, Article 55(6) of Regulation 2015/848.
On the application of those principles in relation to Regulation No 1346/2000, see judgment of
Point 45 et seq. of this Opinion.
In relation to that rule in Regulation 2015/848, see Piekenbrok, A.,
Judgment in
Needless to say, the filing of the claim is not an objective in itself but rather a step towards enabling creditors to assert their rights (as creditors of the insolvent debtor) and to participate in the distribution of proceeds.
Virgós-Schmit Report, paragraph 235. Article 39 of the Convention (which Regulation No 1346/2000 reproduces) reiterates that right in relation to creditors whose domicile, habitual residence or registered office is located in a Member State other than the State of the opening of proceedings.
Particularly for
The notion of
Virgós-Schmit Report, paragraph 236.
Virgós-Schmit Report, paragraph 238. Ideally,
Article 32(2),
Virgós-Schmit Report, paragraph 238.
Article 4(2)(h) of the Convention and Virgós-Schmit Report, paragraphs 238 and 267.
That subordinate position of the liquidator is specific; it is directly linked to the cross-border nature of the insolvency. Furthermore, in Regulation No 1346/2000, the liquidator does not represent only the debtor’s or creditors’ interests; his task is to seek the best outcome for both sides, under the supervision of an authority (which may be judicial).
The The exemption of the liquidator in proceedings from the time limits for the lodging of claims laid down by the See, by contrast, Article 55 of Regulation 2015/848.
It is commonplace in legal literature to refer to an
Some commentators infer from the fact that it is an obligation that, in the event of non-fulfilment, the liquidator incurs liability: Raimon, M.,
The Virgós-Schmit Report, paragraph 239, cites as an example of usefulness the situation where the liquidator finds that the assets to be distributed in other proceedings are so significant that even ordinary creditors in his proceedings may receive a
Notification must be carried out in such a way that each claim and its holder can be identified individually by the liquidator in the proceedings in which the claim is lodged.
This can mean every claim or those claims corresponding to a particular class of creditors (Virgós-Schmit Report, paragraph 239).
Virgós-Schmit Report, paragraph 239. On the law applicable to the ranking of claims, see Article 4(2)(i) of Regulation No 1346/2000.
Conversely, if the liquidator does not notify a claim, the creditor retains the option to do so.
The purpose of each operator’s assessment does not change but the depth of that assessment does.
That is the case, in particular, when a claim is lodged in proceedings opened in the debtor’s centre of interests, where the insolvency estate is universal. The subsequent opening of proceedings in another State (in other words, secondary proceedings) leads to the exclusion of the debtor’s assets in the territory from that insolvency estate. It is reasonable to assume that each creditor who has lodged his claim in the main proceedings has an interest, in principle (unless he or she makes a statement to the contrary, therefore), in that claim also being considered in any secondary proceedings.
In practice, the most likely scenario is that the liquidator for the main proceedings will file those claims in any secondary proceedings (Virgós Soriano, M. and Garcimartín Alférez F.J., loc. cit., paragraph 425).
Point 42 of this Opinion.
Point 61 of this Opinion.
See, by contrast, Article 55(6) of Regulation 2015/848. The situation is different where the
With the added problem that the approach has to be uniform.
Individual lodgement by each creditor would also continue to be subject to the
In the final analysis, given that the lodgement of claims is linked to participation in the distribution of proceeds, it is the
It does not state in the wording of any of the language versions that, in addition to being Neither the Convention nor the report accompanying it limit the lodgement of claims by the liquidator to those which have been verified and admitted in the proceedings for which the liquidator was appointed. That limitation conflicts with the aim of Article 32(2) of Regulation No 1346/2000: it generates expenditure and delays the notification of claims, without providing any benefits. Since the admission and verification of claims in each set of proceedings depends on the Point 49, It is not possible to conclude that the qualifier See Article 4(2)(h) and Article 31. This would also seem to be suggested by the schematic link between Article 32 and Chapter IV of Regulation No 1346/2000, which exclusively lays down the formalities for lodging such claims. In the interests of consistency, the meaning of the word The right of any creditor to assert a claim in a number of proceedings is not dependent on that claim first being verified and admitted in any of those proceedings. Since the liquidator acts in the name and on behalf of the creditor, it is logical that his duty is not subject to the completion of those steps either.
Paragraph 19 of his written observations.
Most States have set those periods in the
Ibid.
Reinhart, S.,
Article 55(6). Regulation 2015/848 also strengthens the mechanisms for ensuring that a foreign creditor learns that proceedings have been opened in another country, by means of provisions governing the registration of proceedings, the interconnection of registers and access to those registers. It also introduces improvements in the chapter relating to the lodgement of claims.
As opposed to the 45 days which was put forward by the Commission in its proposal (footnote 18 above) and accepted by the European Parliament (Position of the European Parliament adopted at first reading on
Wessels, B., loc. cit., paragraph 10867. Article 41 of Regulation 2015/848, which is more explicit than Regulation No 1346/2000, provides that liquidators have a duty to cooperate in any way, including the conclusion of protocols.
Article 32(2) of Council Regulation (EC) No 1346/2000 of