European Insolvency Regulations

DirectorsPH. D. EMILIO BELTRÁN

Professor in Commercial LawCEU San Pablo University

PH. D. RAFAEL SEBASTIÁNProfessor in Commercial Law. ICADE

Partner Uría Menéndez

EUROPEAN INSOLVENCY REGULATIONS

Applications of the European Regulationon Insolvency Proceedings

CoordinationPH. D. ANA BELÉN CAMPUZANO

Professor in Commercial LawCEU San Pablo University

PH. D. GUILLERMO VELASCO, LL. M.Professor in Commercial Law. CUNEF

Associate Lawyer Deloitte

EVENCYA000 Monografías/Técnica 05-05-10 09:35:01

Primera edición, 2010

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ContentsContents

Page

PRESENTATION ......................................................................................... 11

European Insolvency Law: Brief Approach to Council Regulation (EC)No. 1346/2000 on Insolvency Proceedings ............................................. 17

Ph. D. José Luis Iriarte ÁngelProfessor in Private International Law. Public University of NavarraSenior Legal Adviser. Eversheds LupicinioPh. D. Marta Casado AbarqueroLecturer in International Commercial Law. Deusto UniversityPartner. San José Abogados

Austria ....................................................................................................... 57Alexander KlauserBrauneis Klauser Prandl

Barbara PogacarLawpartners Rechtsanwalte, Dr. Borns Rechtsanwalts GmbH

Belgium ..................................................................................................... 79Thierry Bosly, Muriel Alhadeff, Florence Meeuwissen and Katja ThürmerWhite & Case

Czech Republic ........................................................................................ 103

Dusan Sedlacek, Ivan Barabas and Lenka NeuzilovaAttorneys-at-LawHavel & Holasek

Cyprus ....................................................................................................... 133

Maria KyriacovAndreas Neocleous & CO LLC

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Page

Denmark ................................................................................................... 159

Lars Lindencrone PetersenPartner at Bech-Bruun

Germany ................................................................................................... 179

Ulrich BlechHengeler Mueller

Greece ...................................................................................................... 201

Vassilios ChristianosProfessor of European Law Faculty of Law, Univesity of AthensChristianos & Partners Law Firm

Finland ...................................................................................................... 225

Pauliina Tenhunen and Anna-Kaisa NenonenPartner – AssociateCastrén & Snellman Attorneys

France ....................................................................................................... 247

Nicolas LaurentBredin Prat

Hungary .................................................................................................... 269

Ph. Zsuzsa, Wopera and Dr. Adrienn, NagyInstitute of European and International Law, University of Miskolc

Ireland ...................................................................................................... 295

Michelle Smith De Bruin BLLaw Library, Four Courts, Dublin

Italy ........................................................................................................... 323

Vittorio LupoliBonelli Erede Pappalardo

Latvia ........................................................................................................ 345

Vadims MantrovsRozenfelds & partners

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Contents

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Netherlands .............................................................................................. 373

Sijmen H. de Ranitz and Lucas P. KortmannResorKarin M. SixmaDe Brauw Blackstone Westbroek

Poland ....................................................................................................... 391

Dr. Marcin OlechowskiPartner – Soltysinski Kawecki & Szlezak, WarsawAssociate professor – Institute of Civil Law, Warsaw University

Portugal .................................................................................................... 407

Nuno Salazar CasanovaAdvogadoUría Menéndez

Romania .................................................................................................... 429

Alina RaduPartner

Diana IspasSenior Associate

Larisa TuguiAssociate

Florian CaimacAssociate

Spain ......................................................................................................... 453

Ph. D. Guillermo Velasco, LL. M.CUNEF (Complutense University)Associate Lawyer at Deloitte

Sweden ...................................................................................................... 475

Thomas PetterssonPartner Mannheimer Swartling Advokatbyrå

Jonas LindqvistAssociate Mannheimer Swartling Advokatyrå

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Switzerland ............................................................................................... 503Thomas RohdeBar & Karrer AG

United Kingdom ....................................................................................... 533Miranda Leung, George Seligman and Sarah PatersonSlaughter & May

ANNEX ...................................................................................................... 595Council Regulation 1346/2000, of 29 May 2000 ............................................. 597

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Presentation

I. The continual expansion of international economic relations hasbrought with it a similarly ceaseless increase in so-called «international insol-vencies», i.e. insolvencies which have an effect in various countries due tothe existence of companies, assets or creditors outside the state in which theinsolvency proceedings are opened. The need for legislation to solve theproblems presented by insolvencies of international scope is therefore evi-dent. The United Nations addressed international insolvencies through itsModel Law on Cross-Border Insolvency of the United Nations Commissionon International Trade, accompanied by the Guide to Enactment (the incor-poration of which into the legislation of the various states was recommendedin General Assembly Resolution 52/158, of 15 December 1997), and throughthe subsequent UNCITRAL Legislative Guide on Insolvency Law (approvedin General Assembly Resolution of 2 December 2004) which, in an excellentstudy of insolvency law, attempted to bring the legislation of the various statescloser together. As far as the European Union is concerned, the need for asupranational solution was even greater as a result of the creation of an inter-nal market and this need gave rise to Council Regulation (EC) no. 1346/2000 of 29 May 2000 on insolvency proceedings (RIP) which follows therecommendations of the UN Model Law faithfully and establishes the sameobjectives: to facilitate the recognition of the claims of creditors who do notreside in the State where the insolvency proceedings are opened and to en-dow the courts responsible for insolvency proceedings with the powers requi-red to take action on assets located in the territory of other States.

II. Two models at opposite extremes have been put forward to addressthe regulation of international insolvencies: one that establishes the universalnature of the insolvency («the universal model») in which one single insol-vency proceeding would be commenced that would encompass all the deb-tor’s assets and all the creditors, whether national or foreign; and one whichfocuses on the territorial nature of the insolvency («the territorial model»),where there are as many insolvency proceedings as States in which assets andcreditors of the debtor are located and where the insolvency estate and theclaims in each proceeding correspond to those in the territory of each State.Following the UN Model Law, the Community Regulation has, at least for

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the time being, opted to forgo the universal model in favour of an interme-diate solution that exceeds the scope of the territorial model, giving rise toa system that could be described as «qualified universalism». Under this system,the insolvency proceedings which, if applicable, are the main proceedings,are opened in the Member State where the debtor’s main centre of interestsis situated (Art. 3.1 RIP) and are recognised in all the other Member Statesfrom the time the judgment opening the proceedings becomes effective inthe State of such proceedings (Art. 16.1 RIP), requiring no further formali-ties (Art. 17.1 RIP). However, the courts of another Member State may openother insolvency proceedings –which will be classed as territorial and secondaryproceedings– in the places where the debtor possesses an establishment, alt-hough these proceedings must be for the purposes of winding-up (Arts. 3.2,3.3 and 16.2 RIP). In any event, the liquidator or administrator appointedin the main insolvency proceedings (proof of which must be provided inextraordinary circumstances: Art. 19 RIP) may exercise the powers conferredon him by the law of the State in which the principal proceedings have beenopened in any other Member State, as long as no other insolvency proceedingshave been opened nor any preservation measure to the contrary has been ta-ken there (Art. 18.1).

III. The «lukewarm» solution adopted by the Community is also evi-dent in the crux issue affecting insolvencies with international components,i.e. the applicable law, which will not always be that of the country in whichthe main proceedings have been opened. The Community Regulation oninsolvency proceedings lays down standard regulations for conflicts that re-place national regulations based on international private law. The generalrule is that «save as otherwise provided in this Regulation, the law applicableto insolvency proceedings and their effects shall be that of the Member Statewithin the territory of which such proceedings are opened» (Art. 4.1 RIP)which, as indicated above, shall be the centre of the debtor’s main interests(Art. 3.1 RIP). «The law of the State of the opening of proceedings shalldetermine the conditions for the opening of those proceedings, their con-duct and their closure» (Art. 4.2 RIP). The Regulation also details the mattersto which the law of the State of the opening of proceedings shall apply, suchas lex concursus: the debtors against whom insolvency proceedings may bebrought; the assets which form part of the estate and particularly whetherassets acquired after the opening of proceedings are included; the respectivepowers of the debtor and the liquidator; the conditions under which set-offsmay be invoked; the effects of insolvency proceedings on current contracts;the effects of the insolvency proceedings on proceedings brought by indivi-dual creditors, with the exception of proceedings brought previously; the

12


Presentation

claims which are to be lodged against the debtor’s estate and the treatmentof claims arising after the opening of insolvency proceedings (the insolvencyestate); the rules governing the lodging, verification and admission of claims(without prejudice to the special rules set forth in Chapter IV of the Regula-tion); the rules governing the distribution of the assets and the ranking ofclaims, including the legal position of creditors who have obtained partialsatisfaction by virtue of a right in rem or through a set-off; the conditions forand the effects of closure of insolvency proceedings, in particular by composi-tion; creditors’ rights after the closure of insolvency proceedings; who is tobear the costs and expenses incurred in the insolvency proceedings and therules relating to the restitution of assets.

This general principle is clearly limited in that, as described above, itonly allows territorial proceedings to be opened and it also contains verysignificant exceptions that dilute the principle of universal proceedings evenfurther. These exceptions can be classified as follows:

a) The first group of exceptions relates to the main situations in whichthe creditor attempts to protect himself against the insolvency of the debtorthrough rights in rem, set-off or reservation of title (Arts. 5-7 RIP). In all thesecases insolvency law is not necessarily applicable since the national law of thecreditor will apply. The conventionally protected creditor will therefore oc-cupy the same position regardless of the place in which the insolvency pro-ceedings are opened. This special treatment does not preclude actions aimedat the restitution of assets as a result of which the right in rem, the set-offor the reservation of title agreed in detriment to the creditors is declaredinoperative.

b) A second group of exceptions means that, strictly speaking, certaineffects of the insolvency are not governed by the law of the State where theproceedings are opened but by the law of another Member state. This is thecase of contracts conferring the right to use or acquire immoveable property,whose effects shall be governed solely by the law of the Member State withinthe territory of which the immoveable property is situated (Art. 8); paymentssystems and financial markets, where «the effects of insolvency proceedingson the rights and obligations of the parties to a payment or settlement systemor to a financial market shall be governed solely by the law of the MemberState applicable to that system or market» (Art. 9); contracts of employment,which shall be governed solely by the law of the Member State applicable tothe contract (Art. 10), bearing in mind that the exception relates exclusivelyto the effects of the insolvency on the contract (continuation or termination;the rights and obligations of the contracting parties) and not to other matters

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such as the existence and ranking of preferential rights, which will be deter-mined pursuant to the law of the State in which proceedings were opened;rights subject to registration, whereby «the effects of insolvency proceedingson the rights of the debtor in immoveable property, a ship or an aircraftsubject to registration in a public register shall be determined by the law ofthe Member State under the authority of which the register is kept» (Art.11). To protect third-party purchasers of immoveable property, ships or air-craft subject to registration and registered securities disposed of for consi-deration by the debtor it is also established that «the validity of that act shallbe governed by the law of the State within the territory of which the immovea-ble asset is situated or under the authority of which the register is kept» (Art.14). Lastly, the effects of the proceedings on «a lawsuit pending concerningan asset or a right of which the debtor has been divested shall be governedsolely by the law of the Member State in which that lawsuit is pen-ding» (Art. 15).

c) Thirdly, the Regulation establishes two special rules. The aim of thefirst, whereby patents and trademarks may be included only in the assets ofthe main proceedings (Art. 12), is that the Community nature of the afore-mentioned industrial property rights should be respected. The second, rela-ting to the restitution of assets, aims to defend the beneficiary against an actof the debtor prior to the opening of proceedings: the other party in the actmay prevent the law of the State of the opening of proceedings from beingapplied if proof is provided that the act is subject to the law of a MemberState other than that of the State of the opening of proceedings and that lawdoes not allow any means of challenging that act (Art. 13).

IV. This book was conceived as a response to the shortcomings of com-munity legislation. From a theoretical standpoint, it aims to take a necessarystep forward in the substantive unification of European insolvency law byshowing that the differences between the different legal systems are not asnumerous as they are said to be and, above all, by attempting to provideinternational relations with the required legal certainty. From a practicalpoint of view, the impossibility, at least in the short term, of achieving a singleinsolvency proceeding, even in the European Union, must be recognised.Similarly, despite the impossibility of attaining a substantive unification ofinsolvency law in the European Union we must attempt to achieve the samelegal certainty in the international sphere, offering legal practitioners guideli-nes for insolvency proceedings in European Union Member States and areliable «guide» for handling matters in a country to which the law of thecountry where the insolvency proceedings are opened does not necessa-rily apply.

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Presentation

Accordingly, each piece of work is divided into two clearly differentiatedparts. The first aims to offer a general overview of the particular country’slegislation, outlining the proceedings in force and particularly the relations-hip between the proceedings (schedules to laws are supplied in a computeri-sed format). The second part analyses the solution given by the legislation tomatters to which, according to the Regulation on insolvency proceedings,the law of the country where the insolvency proceedings are opened will notnecessarily apply, i.e. third parties’ rights in rem (Art. 5 RIP), set-off (Art. 6),reservation of title (Art. 7), contracts relating to immovable property (Art. 8RIP), payment systems (Art. 9 RIP), contracts of employment (Art. 10 RIP),effects on rights subject to registration (Art. 11 RIP), detrimental acts protec-tion of third-party purchasers (Art. 14 RIP) and lawsuits pending (Art. 15RIP). Lastly, a bibliography and certain specific judgments are supplied.

It should be noted that the majority of the studies included in the bookwere prepared by specialists in insolvency law with proven and demonstrableexperience in practice and teaching at the leading European law firms. Theynot only analyse the legislation applicable in their respective countries butalso offer solutions to the numerous problems they face on a day-to-day basis.This is one of the most valuable features of the book since, together withexpert analyses, it contains interesting practical contributions that make thebook singularly valuable for scholars and for practising lawyers. Many thanksto the authors. Taking into account the magnitude of the task, only an inter-national publisher like Thomson Reuters could have coordinated and editedthe book so successfully and we are grateful to them for their work. Finally,we would like to thank the readers who will judge the timeliness and thequality of this book.

THE DIRECTORS

January 2010

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European Insolvency Law...

European Insolvency Law: Brief Approach toCouncil Regulation (EC) no. 1346/2000 on

Insolvency Proceedings

Ph. D. JOSÉ LUIS IRIARTE ÁNGEL

Professor in Private International Law. Public University of NavarraSenior Legal Adviser. Eversheds Lupicinio

Ph. D. MARTA CASADO ABARQUERO

Lecturer in International Commercial Law. Deusto UniversityPartner. San José Abogados

SUMARIO.–I. AN OUTLINE OF EUROPEAN INSOLVENCY REGULATION; I.1 HISTORICAL

BACKGROUND; I.2 A «CONTROLLED UNIVERSALITY SYSTEM»; I.3 LEGAL BASIS; II. SCOPE OFAPPLICATION; II.1 MATERIAL SCOPE OF APPLICATION; II.1.1 Insolvency proceedings;II.1.2 Collective character; II.1.3 Divestment of the debtor; II.1.4 Appointment of aliquidator; II.2 PERSONAL SCOPE OF APPLICATION; II.3 SPATIAL SCOPE OF APPLICATION; II.4TEMPORAL SCOPE OF APPLICATION; III. RELATIONSHIP WITH REGULATION 44/2001;IV. MAIN INSOLVENCY PROCEEDINGS; IV.1 INTERNATIONAL JURISDICTION: THE

CENTRE OF THE DEBTOR’S MAIN INTEREST1; IV.2 APPLICABLE LAW; IV.2.1 Lex fori concursis asbasic rule; IV.2.2 Exception to the lex concursus; IV.2.2.1 Third parties’ rights in rem;IV.2.2.2 Set-off; IV.2.2.3 Reservation of title; IV.2.2.4 Contracts relating to immov-able property; IV.2.2.5 Payment systems and financial markets; IV.2.2.6 Contracts ofemployment; IV.2.2.7 Effects on rights subject to registration; IV.2.2.8 Communitypatents and trade marks; IV.2.2.9 Detrimental acts; IV.2.2.10 Protection of third-party purchasers; IV.2.2.11 Effects of insolvency proceedings on lawsuits pending;V. TERRITORIAL PROCEEDINGS; V.1 INDEPENDENT OR SECONDARY PROCEEDIGS; V.2 IN-

TERNATIONAL JURISDICTION; V.3 APPLICABLE LAW; VI. COORDINATION BETWEEN IN-SOLVENCY PROCEEDINGS OPENED IN DIFFERENT STATES; VI.1 PARTICIPATION

1. There is no special provisions in the Regulation relating to groups of companies, thatis, to groups organised by way of a number of separately incorporated subsidiarycompanies in different Member States. In this case, separate insolvency proceedingswill need to be commenced in respect of each subsidiary company because there areno provisions which allow such companies to enter into a single set of consolidatedinsolvency proceedings, and provisions on coordination between main and secondaryproceedings do not apply when separate establishment of the same enterprise havebeen incorporated as separate legal entities. Under Regulation, if these separate legalentities have centres of main interests in different jurisdiction, then separate mainproceedings should be opened in relation to each of them.

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J. L. IRIARTE ÁNGEL/M. CASADO ABARQUERO

RULES (ARTICLE 32); VI.2 COOPERATION RULES (ARTICLE 31); VI.3 COMPATIBILITY OF INSOLV-

ENCY PROCEEDINGS RULES; VI.3.1 Stay of liquidation (Article 33); VI.3.2 Mesures endingsecondary proceedings without liquidation (Article 34); VI.3.3 Subsequent openingof main proceedings (Articles 36 and 37); VI.4 DISTRIBUTION; VI.4.1 Secondary pro-ceedings surplus (Article 35); VI.4.2 Return and imputation rules (Article 20); VII.RECOGNITION OF INSOLVENCY PROCEEDINGS; VII.1 THE AUTOMATIC RECOGNI-

TION SYSTEM; VII.2 DECLARATION OF OPENING; VII.2.1 Automatic recognition; VII.2.2EFFECTS OF RECOGNITION; VII.3 RECOGNITION AND ENFORCEMENT OF OTHER DECISIONS; VII.4REFUSAL OF RECOGNITION; VII.5 LIQUIDATOR; VII.6 PUBLICITY AND REGISTRATION OF PROCEED-

INGS; VII.6.1 Publicity of the proceedings; VII.6.2 Registration of the proceedings.

I. AN OUTLINE OF EUROPEAN INSOLVENCY REGULATION

I.1. HISTORICAL BACKGROUND

The Regulation started life as the European Convention on InsolvencyProceedings, which was first proposed in 1963. Before the signature of theAmsterdam Treaty, there was created a draft of this convention concerningthe unification of insolvency proceedings in the EU. The European Conven-tion of Insolvency Proceedings was ready for signature in 1995 but failed tobe signed because of political reasons. In fact, the convention was signed in1995 by 12 of the Member States at that time but lapsed when United King-dom failed to sign it whitin the binding time limit2.

Nevertheless, much of the text of the old Convention forms the presentEC Regulation on Insolvency Proceedings (hereinafter, EIR) adopted by theEU Council on May 29, 2000. The Regulation is directly inspired on the oldconventional text3.

2. Many comments made in regard to 1995 Convention also apply to the present Regula-tion. Vid. inter alia, H. EIDENMÜLLER, «Europaische Verordnung über Insolvenzver-fahren und zukünftiges deutsches internationales Insolvenzrecht», IPrax, 2001, pp. 2-15; A. MARTIN-SERF, «La faillite internationale: Une realité économique pressante, unenchevement juridique croissant», Journal du Droit International, 1995, pp. 31-99; D.MCKENZIE, «The EC Convention on Insolvency Proceedings», European Review of PrivateLaw, 1996, pp. 181-200; S. POILLO-PERUZZETTO, «Le créancier et la faillite européenne:commentaire de la Convention des Communautés européennes relative auxprocédures d’insolvabilité», Journal du Droit International, 1997, pp. 757-781; J. TAUPITZ,«Das (zukünftige) europaische internationale Insolvenzrecht –insbesondere aus inter-national-privatrechtlicher Sicht», Zeitschrift für Zivilprozeß, 1998, 315-350; J. L. VALLENS,«Le droit européen de la faillite: premiers commentaires de la convention relativeaux procédures d’insolvailité», Recueil Dalloz Sirey, 1995, 307-310.

3. A detailed explanatory report by Professor VIRGOS and Mr. SCHMIT was prepared toaccompany the Convention. The known as «Virgos-Schmit Report» [EU Conseil docu-ment no. 6500/1/96 REV1 DRS (CFC)]. This report is not an official document andtherefore is not decisivee regarding EIR. However, as EIR is so closely based on thetext of the Convention it may help to interpretate the intention and philosophy un-derlying some provisions of the present Regulation.

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On 31 May 2002, the EC Regulation on Insolvency Proceedings enteredinto force4. With EIR a major step has been taken towards harmonisation ofprivate international law concerning insolvency proceedings. Its objective wasto establish a common set of rules on cross-border insolvency proceedingsbased on principles of mutual recognition and cooperation. It sought toachieve this objective by harmonising the insolvency jurisdiction of the courtsof the EU Member States, by restoring creditors equality as the core principleof insolvency proceedings, by introducing uniform conflicts of law rules forinsolvency proceedings and connected judgments, and by disincentivisingcompanies from forum shopping5. In order to achive its aim, EIR establishessome insolvency uniform rules, although it mainly contains insolvency pro-cedural law (which regulates the jurisdiction for insolvency proceedings andsome aspects of their course) and insolvency conflict rules (which regulatesthe law applicable for the concrete proceedings by remission to the nationallaw of one of the Member States).

The entry into force of Regulation no. 1346/2000 on 31 May 2002marked the end of a long vacuum marked by the absence of coordinatedinternational regulation of insolvency proceedings. The Regulation, ratherthan attempting to harmonise substantive laws aims at improving the effi-ciency and effectiveness of insolvency proceedings having cross-border di-mensions by removing the formalities which had previously been associatedwith recognition and enforcement of judgments and a establishing a legalframework within which the different insolvency regimes in the MemberStates can cooperate and interact.

4. Between the numerous bibliography regarding European Insolvency Regulation, vid.inter alios, M. VIRGÓS/F. J. GARCIMARTÍN, Comentario al Reglamento Europeo de Insolvencia,Madrid: Civitas, 2003; A. L. CALVO CARAVACA/J. CARRASCOSA GONZÁLEZ, «Reglamento(CE) núm. 1346/2000, sobre procedimientos de insolvencia y cuestiones de ley aplic-able», Estudios sobre la Ley Concursal. Libro Homenaje a Manuel Olivencia, Madrid, T. I,pp. 647-680; id., «Competencia internacional y procedimientos principales de in-solvencia en el Reglamento 1346/2000», Revista de derecho concursal y paraconcursal:Anales de doctrina, praxis, jurisprudencia y legislación, 2004, pp. 157-188; FLETCHER, MOSS,ISAACS (eds.), The EC Regulation on Insolvency Proceedings. A Commentary and AnnotatedGuide, Oxford, 2002; P. DE CESARI, «Giurisdzione, riconoscimeno ed esecuzione delldecision nel Regolamento comunitario relativo alle procedure di insolvenza», Rivistadi diritto internazionale privato e procesual, 2003, pp. 55-84; P. DE CESARI/G. MONTELLA,Le procedure di insolvenza nella nouva disciplina comunitaria: commentario articolo per arti-colo del regolamento CE n. 1346/2000, Milano 2004.

5. Regarding the need of harmonisation in the field of insolvency, vid. J. C. FERNÁNDEZ

ROZAS, Ius mercatorum. Autorregulacion y unificacion del derecho de los negocios transnacio-nales, Dykinson, 2004, pp. 408-409; R. M. GOODE, «A credit law for Europe», Interna-tional and comparative law quaterly, 1974, pp. 227-291; K. H. NADELMANN, «An interna-tional Bankruptcy Code: New Thoughts on an Old Idea», International law and compar-ative law quaterly, 1961, pp. 70-82.

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I.2. A «CONTROLLED UNIVERSALITY SYSTEM»6

The EIR is based upon the principle of universality, according to whichthe insolvency proceedings affect all the assets of the debtor regardless theplace where they are situated. There shall exist one only main insolvencyproceeding which affects all the assets of the debtor. Together with this mainproceedings there may exist secondary proceeding in another state whichmay affect only the assets located in the territory of this Member State.

That means that it should be one single universal proceedings re-cognised by all Member States which has power over claims with regard to theentirety of debtor’s assets located in the Member States. Supporting collateralproceedings can be initiated in the Member States. These proceedingsshould cooperate and be coordinated with the universal proceedings. Con-flict of law rules will determine the applicable law in each case.

According to this normative model, EIR provides for two kind of insol-vency proceedings:

a) «Main insolvency proceedings», which there is only intended to be onewithin the EU territory and spreads out its effects to all assets of the insolventdebtor, wherever they are located. As it will be explained, it can only beopened in the Member State where the debtor has his centre of main in-terest, and these can either be winding-up or reorganisation proceedings.

b) «Secondary proceedings» opened in the State where the establishmentsof the debtor are located without any number limitation. Contrary to themain insolvency proceedings, the effects of these proceedings are limited tothe territory of the State where they have been opened. These secondaryproceedings need to be of winding-up nature. Normally such proceedingswill be opened after main insolvency proceedings have commenced in theMember State where the centre of main interest is located. Exceptionallythey are opened before the main porceedings have been openend. When sooccurs, they are referred as «territorial proceedings» and they are not limitedto the liquidation of the business.

I.3. LEGAL BASIS

The European Community based its legislative authority in respect of in-solvency proceedings on the consideration that the insolvency of undertakings

6. Analysing the different normative insolvency models, G. ENRIQUES, Universalita e territor-ialita del fallimento nel diritto internazionale privato, Roma, Athenaeum, 1934, pp. 32-61;Nowadays, I. F. FLETCHER, «Universality versus Secondary Bankruptcy: A EuropeanDebate», International Insolvency Review, 1993, pp. 151-164.

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affects the proper functioning of the internal market. That means that efficientand effectiveness cross-border insovency proceedings are required. The pur-pose of the Regulation to realise this objective comes within the scope ofcooperation in civil and commercial matters and, therefore, whithin the mean-ing of article 65 of the EC Treaty7. Under the Treaty of Amsterdam of 2 October1997, Article 65 was added to the Treaty establishing the European Communityand was included in Title IV of the EC Treaty8. When choosing to adopt theform of a regulation, the Council selected the strongest European legal instru-ment, since a regulation is binding in its entirety and directly applicable in allMember States in accordance with Article 249 of the EC Treaty.

Any other legal form would have allowed Member States a margin ofappreciation in implementing it content, and the differences arising fromwould have worked against the goal of a uniform regulation –especiallydifferences concerning the creditor’s protection policy and the imple-mentation of equal treatment for creditors9–.

As secondary Community law, the European Insolvency Regulation fallsunder the jurisdiction of the European Court of Justice, which ensures itsuniform interpretation.

II. SCOPE OF APPLICATION

II.1. MATERIAL SCOPE OF APPLICATION

Pursuant to Article 1.1, the insolvency regulation applies to «collectiveinsolvency proceedings which entail the partial or total divestment of adebtor and the appointment of a liquidator». Through out this definition,four concepts delimit the material scope of application of EIR: An insolventsituation, its collective character, the divestment of the debtor and the ap-pointment of a liquidator.

7. Vid. Recital 2 of Regulation (EC) no. 1346/2000 of 29 May 2000 on insolvency pro-ceedings.

8. The choice for Article 65 of Title IV of the EC Treaty as legal basis not only led toDenmark (initially also the United Kingdom and Ireland) refraining from participaitingin the application of every mesure based on this article, but also had a high impact onthe jurisdiction of ECJ. Article 68 EC Treaty provides that the highest national courtsof the Member States may request a preliminary decision from the Court of Justiceon the interpretation of the measures based on Title IV.

9. Vid. Recital 8 of Regulation (EC) no. 1346/2000 of 29 May 2000 on insolvency pro-ceedings.

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In any case, a complete list of the insolvency proceedings fulfilling thecriteria outlined in Article 1.1 is found in Annex A, thereby facilitating thepractical application of the insolvency Regulation. In this way, definitionsonly have meaning if the extension of the annexes is at issue, as for when theentry of another state in the European Union10. The regulation was recentlyamended to take account of developments in insolvency procedures availablein the member states and to update the list because of the accession of newmember states11.

II.1.1. Insolvency proceedings

EIR does not determine when an insolvency exists. Thereby it is leftto each Member State to administer its own procedures according to theinsolvency test laid down by its national courts.

Thus, for example, an Insolvenzverfahren (insolvency proceedings) in thesense of the German insolvency regulation («InsO») that has been openedon the basis of an imminent inability to pay pursuant to § 18 InsO falls withinthe ambit of the insolvency regulation. The creditors’ voluntary winding-up inthe United Kingdom is likewise covered to the extent that it is opened onthe grounds of the insolvency, that this is judicially established and that thisleads to the appointment of a liquidator. The regulation is inapplicable to

10. The application of the Regulation to proceedings that fulfils the requirements ofthe definition afforded by article 1.1 has been implicitly confirmed by ECJ in Euro-food (ECJ 2 May 2006, case C-341/04 [TJCE 2006, 126], par. 55). In this respect,some authors raised doubts on whether the amministrazione straordinaria of hugeundertakings fell within such scope since it was not listed with the insolvency pro-ceedings of Annex A and the commisario straordinario was not listed in Annex C.These doubts were abandoned since it has all features that characterise insolvencyproceedings under article 1 and the application of EIR was explicitly affirmed byECJ.

11. Annexs amended by Council Regulation (EC) no. 788/2008 of 24 July 2008amending the lists of insolvency proceedings and winding-up proceedings inAnnexes A and B to Regulation (EC) no. 1346/2000 on insolvency proceedings andcodifying Annexes A, B and C to that Regulation (OJ L 213, 8 August 2008); CouncilRegulation (EC) no. 681/2007 of 13 June 2007 amending the lists of insolvencyproceedings, winding-up proceedings and liquidators in Annexes A, B and C toRegulation (EC) no. 1346/2000 on insolvency proceedings (OJ L 159, 20 June2007); Council Regulation (EC) no. 694/2006 of 27 April 2006 amending the listsof insolvency proceedings, winding-up proceedings and liquidators in Annexes A, Band C to Regulation (EC) no. 1346/2000 on insolvency proceedings (OJ L 121, 6May 2006); Council Regulation (EC) no. 603/2005 of 12 April 2005 amending thelists of insolvency proceedings, winding-up proceedings and liquidators in AnnexesA, B and C to Regulation (EC) no. 1346/2000 on insolvency proceedings (OJ L 100,20 April 2005).

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purely pre-insolvency proceedings such as the French reglement amiable12. Inany case, the insolvency regulation does not prescribe any particular processof realisation for the insolvency proceedings. In this way, Anex A, concerningmain insolvency proceedings, includes both, winding-up proceedings and re-organisation proceedings; whereas the types of proceedings that can beopened as secondary proceedings, listed in Annex B, are restricted to wind-ing-up proceedings.

II.1.2. Collective character

The collective satisfaction of creditros is considered a major element ofthe notion of «insolvency procedure» that aims at ensuring the efficiency andproper coordination of insolvency proceedings within the European Union,thus assuring the equal distribution of available assets among all creditors.

II.1.3. Divestment of the debtor

Article 1.1 restricts the application of EIR to proceedings which «entailthe partial or total divestment of a debtor», excluding therefore any kind ofinsolvency proceedings which, in spite of its collective nature, leave thedebtor the full control of his assets and business. There must be some typeof loss of control of the debtor’s faculties of administration, whatever formit takes because it may be observed that the partial divestments suffices toqualify a certain proceeding as an insolvency one if the other requirementsare fulfilled13.

II.1.4. Appointment of a liquidator

The appointment of a liquidator is the consequence of the divestmentof the debtor. According to EIR, liquidator shall mean any person or bodywhose function is to administer or liquidate assets of which the debtor hasbeen divested or to supervise the administration of his affairs14. In case ofdoubt, those persons and bodies are listed in Annex C.

12. S. KOLMANN, «European international insolvency law – Council regulation (EC) no.1346/2000 on insolvency proceedings», The European Legal Forum, Issue 3-2002, p.168.

13. Virgos-Schmit Report, par. 49.14. Article 2.b).

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II.2. PERSONAL SCOPE OF APPLICATION

This Regulation should apply to insolvency proceedings, whether thedebtor is a natural person or a legal person, a trader or an individual15.

The regulation does not apply to banks, credit institutions, insurance com-panies, investment undertakings holding funds or securities for third parties,or collective investment schemes. These are dealt with by two separate Euro-pean directives which are beyond the scope of this chapter.

II.3. SPATIAL SCOPE OF APPLICATION

The EU Insolvency Regulation applies only to proceedings where thecentre of the debtor’s main interest is situated in the Community (herein-after, COMI). There is no conclusive definition of COMI contained in theRegulation, although article 3.1 states that in the case of a company or legalperson, the place of the registered office shall be presumed to be the COMIin the absence of proof to the contrary. This is a rebuttable presumption.Recital 13 of the Preamble states that «the centre of main interests shouldcorrespond to the place where the debtor conducts the administration of his interests ona regular basis and is therefore ascertainable by third parties». The European Courtof Justice («ECJ») in Eurofood16 held, for the purposes of the EC InsolvencyRegulation, that the COMI must be identified by reference to criteria thatare both objective and ascertainable by third parties in order to ensure legalcertainty and foreseeability concerning the determination of the court withjurisdiction to open insolvency proceedings. It follows that the presumptionof the registered office of the debtor being its COMI can be rebutted onlyby factors which are both objective and ascertainable by third parties. Thiscould be the case particularly where a company does not carry out any busi-ness in the territory of the member state in which its registered office issituated. By contrast, where a company carries on its business in the territoryof the member state where its registered office is situated, the mere fact thatits economic decisions are or can be controlled by a parent company inanother member state is not enough to rebut the presumption laid down bythe regulation17. This decision will make it harder, in future cases, to rebut

15. Recital 9.16. ECJ 2 May 2006, case C-341/04 (Eurofood IFSC) (TJCE 2006, 126), par. 26-37.17. Eurofood IFSC Limited (Eurofood) was a wholly owned subsidiary of an Italian com-

pany, Parmalat SpA (Parmalat) and it was a «matter of notorious fact that the (Parm-alat) group (was) in deep financial crisis which (...) led to the insolvency of manyof its key companies». In December 2003, Signor Enrico Bondi was appointed extra-ordinary administrator, in Italy, of Parmalat and another key Parmalat company.Eurofood was incorporated in Ireland and had its registered office in Dublin. It

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the presumption that COMI is in the jurisdiction of a company’s registeredoffice, and therefore will make it more difficult to centralise the COMIs ofa number of companies incorporated in different jurisdictions in one EUjurisdiction

In the case of a company or a legal person, the place of the registeredoffice shall be presumed to be the centre of its main interest in the absenceof proof to contrary18.

EIR does not apply to entities with a centre of main interests outside ofthe European Union, what implies the need of two different insolvency legalsystems regarding intra and extra Community insolvency proceedings, re-spectively. The extent to which insolvency proceedings from outside of theEuropean Union are recognised will depend on the domestic legislation andpractice of each particular member state19.

II.4. TEMPORAL SCOPE OF APPLICATION

EIR has no retrospective effect. Article 43 states that the provisions ofthis Regulation shall apply only to insolvency proceedings opened after itsentry into force. Acts done by a debtor before the entry into force of the

operated under a certificate issued by the Irish Minister for Finance which requiredit to commence and continue to carry on its trading operations within a specifiedarea in Ireland, and any material change of the company (including its sharehold-ing) had to be cleared with the Department of Finance in Ireland. On 27 January2004, when Parmalat’s financial problems became apparent, one of Eurofood’s cred-itors presented a petition to the Irish High Court to wind up Eurofood. A provisionalliquidator was appointed. On 10 February 2004, Eurofood’s provisional liquidatorwas notified of a hearing in Italy to declare Eurofood insolvent and admit it to theItalian extraordinary administration. The company’s petitioning and other majorcreditors were not notified of this hearing. As a result, they did not attend the hear-ing, nor were they able to make representations to the court. At the hearing, theItalian court declared Eurofood insolvent and that its COMI was in Italy, whichmeant that the Italian insolvency proceedings would ostensibly be main insolvencyproceedings under the Regulation. On receiving notification of the decision, Euro-food’s creditors appealed to the Irish High Court. The court found that the pre-sentation of the winding up petition of Eurofood in Ireland and the appointmentof a provisional liquidator brought about the opening of main insolvency proceed-ings in Ireland under the Regulation, and refused to recognise the Italian court’sdecision.

18. Article 3.1.19. Vid. H. EIDENMÜLLER, «Europaische Verordnung...», op. cit., p. 5. Regarding the pre-

vailing carácter of the Regulation over national laws, vid. J. L. IRIARTE ÁNGEL, «Comen-tario al artículo 199 LC», Pedro PRENDES CARRIL (dir.), Tratado Práctico Concursal,Cizur Menor, Aranzadi, 2009, pp. 793-795.

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Regulation shall continue to be governed by the law which was applicable tothem at the time they were done.

III. RELATIONSHIP WITH REGULATION 44/2001

In accordance with article 1 of Council Regulation (EC) no. 44/2001 onjurisdiction and the recognition and enforcement of judgments in civil andcommercial matters20, insolvency proceedings are excluded from its scope ofapplication, as they were under 1968 Brussels Convention21. When the oldConvention was drafted, its scope of application included bankruptcy andsimilar proceedings, but finally they were excluded because of «the specialnature of the excluded matters and the profound differences between thelaws of the contracting States»22. In the next decades, attempts were made todraft a catalogue of European rules for the recognition and enforcement ofcourt of judgments in insolvency proceedings.

Nowadays, EIR provides such rules and article 25, concerning Recogni-tion and enforceability of other judgments, strives to link up with the scopeof Regulation 44/2001 in such a manner that both Regulations leave no gapsin their respective scopes of application23. In general terms thereby it maybe said that judgements regarding the opening and conduct of insolvencyproceedings as well as as judgements deriving directly from the insolvencyproceedings, as defined by article 1.1 EIR, are recognised and enforced pur-suant to the Insolvency Regulation. Whatever any other judgment in civil andcommercial matters that do not derive directly from the insolvency are co-vered by the scope of application of Regulation 44/200124. In this way, thescope of the exclusion of insolvency proceedings under article 1 of Regula-tion 44/2001 should be interpreted regarding the definition afforded to itby EIR25.

20. OJ L 12, 16 January 2001.21. The precise scope of application of the 1968 Brussels Convention was frequently

subject to preliminary questions under ECJ. Vid. A. L. CALVO CARAVACA/F. GARAU

SOBRINO, Comentarios al Convenio de Bruselas relativo a la competencia judicial y a la ejecu-ción de resoluciones judiciales en materia civil y mercantil, Madrid: Universidad Carlos IIIBoletín Oficial del Estado, pp. 41-61.

22. ECJ 22 February 1979, case C-133/78 (Gourdain vs. Nadler), Rec. 1979, p. 733.23. Virgos-Schmit Report. par. 197.24. The relationship beetween EIR and Regulation 44/2001 is analised by two recent

judgments: ECJ 10 September 2009, case C-292/08 (German Graphics Graphische Mas-chinen GmbH); ECJ 2 July 2009, case C-292/08 (SCT Industri).

25. Virgos-Schmit Report. par. 197. In a recent decision rendered by the French Cour deCassation, it was stated that the action brought against the debtor after the closing ofthe insolvency proceedings y a creditor that had been admitted to the proceedingsis not excluded from the Lugano Convention (Cass. 18.12.2007, Garage des Pasquis

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IV. MAIN INSOLVENCY PROCEEDINGS

IV.1. INTERNATIONAL JURISDICTION: THE CENTRE OF THE DEBTOR’S MAIN INTEREST26

Article 3.1 of Insolvency Regulation enables the court of the MemberState where the centre of the debtor’s main interests is located to open maininsolvency proceeding. As explained above, such proceedings have universalscope and are intended to encompass all the debtor’s assets on a worldwidebasis and to affect all creditors, independently of where they are located27.

Therefore the core of the Insolvency Regulation is the concept of thecentre of main interests. Fundamental source of interpretation of this termis Virgos-Schmit report, that was many times excerpt by European Court ofJustice. But not the only one: other source of interpretation is the definitioncomprehended in the recital 13 of Preamble whereby «The centre of maininterests should correspond to the place where the debtor conducts the administrationof his interests on a regular basis and is therefore ascertainable by third parties». Thisdefinition has an open character, which gives it the advantage of flexibilitybecause it results from the combination of several fundamental ideas28. Any-

vs. Karaman, Revue critique de Droit International Privé, 2008, p. 338). In any case, thefrontier between claims that derive directly from insolvency law and claims that arenot based on insolvency law, is far from clear. Vid. J. HAUBOLD, «Europaisches Zivilver-fahrensrecht und Ansprüche im Zusammenhang mit Insolvenzverfahren. ZurAbgrenzung zwischen Europaischer Insolvenzverordnung und EuGVO, EuGVÜ undLugÜ», IPrax, 2002, pp. 157-163.

26. There is no special provision in the Regulation relating to groups of companies,that is, to groups organised by way of a number of separetely incorporated subsidiarycompanies in different Member States. In this case, separate insolvency proceedingswill need to be commenced in respect of each subsidiary company because there areno provisions which allow such companies to enter into a single set of consolidatedinsolvency proceedings, and provisions on coordination between main and second-ary proceedings do not apply when separate establishment of the same enterprisehave been incorporated as separate legal entities. Under Regulation, if these se-parate legal entities have centres of main interests in different jurisdiction, thenseparate main proceedings should be opened in relation to each of them. Vid. F. E.DE LA ROSA, «Repercusiones de la insolvencia patrimonial de las sociedades dependi-entes en los grupos internacionales de socedades», Anuario Español de Derecho Interna-cional Privado, 2003, pp. 171-183.

27. Restricting the scope of application of EIR by reason of the location of the creditor,vid. M. VIRGÓS SORIANO/F. J. GARCIMARTÍN ALFÉREZ, Comentario al... op. cit., par. 27.

28. As indicative factors of the place where the centre of main interest of the debtor islocated, following J. MARSHALL, European Cross order insolvency, London: Sweet & Max-well, 2005, par. 29; «a) Where the directors of the company are domiciled or re-sident and where board meetings take place; b) If the administration of the companyis sub-contracted to a third party (as was the case with Eurofood IFSC), where thatthird party is located and the governing law of the administration agreement; c) Ifthe company is an operating company, its trading address and where the operations

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way, the important factor that determines the centre of debtor’s main inter-ests is the place where his interests are administered, not the place wherethose concrete interests are located. In other words, the place from wherethe debtor conducts its activities. Administration is intended to mean themanagement and control of interests.

If a debtor is natural person and is engaged in an independent businessor professional activity, the centre of main interests will normally correspondto the state where he has his business or professional address. For otherindividuals in general, no professionals, the place of their main interests isthe habitual residence.

Where companies and legal persons are concerned, the Insolvency Regu-lation presumes that the debtor’s centre of main interests is the place of hisregistered office. This place normally corresponds to the debtor’s headoffice. But in the contradictory cases, the place of main interests will corre-sponds to the place that appears as its central administration, the place fromwhich the main activities are controlled and ultimate decisions at the highestlevel are taken.

The Insolvency Regulation only determines the international jurisdic-tion of the courts of the State. Territorial jurisdiction within that State willbe determined by its national law. However the relationship between bothset of rules may give rise to inconsistency problems. For example, before thereform of Spanish insolvency law, it was not possible to commence insolvencyproceedings in respect of non-trading individuals,although according to Re-cital 9 of the Regulation EIR should apply to insolvency proceedings, whetherthe debtor is a natural person or a legal one, a trader or an individual.

Contrary to Regulation 44/2001, EIR does not provide with any rule onlis pendens. The reason to this vacuum may be found on the fact that whenthe Regulation was being negotiated such conflict were deemed completely

primarily take place (including, for example, where contracts with creditors are ne-gotiated and concluded, the governing law of those contracts with creditors arenegotiated and concluded, the governing law of those contracts and where goodsor services are actually provided); d) Where the employee of the company are domi-ciled or resident and the governing law of the employment contracts; e) If the ap-proval of particular shareholders or third parties is needed before the company canenter into any substantial transactions, or if the business of the company is carriedout in accordance with any management strategy drawn up by those shareholdersor third parties, where those shareholders or third parties are located; f) If theinformation technology and support services are provided by another company inthe group, where those information technology are performed; g) Where the com-pany is tax resident and, if the company is regulated, where regulator is located; h)Where the company’s accounts are prepared, audited and registered».

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extraordinary because of companies are presumed to have one single COMIand because of the recognition of the decision opening main proceedingsprevents the courts of other Member States from opening other main pro-ceedings.

However, the lapse of time existing between the application of openingand the effective opening of insolvency proceedings by the court proved thatthe previous assessment was erroneus. In Eurofood the ECJ conferred the func-tion of solving conflicts of jurisdiction to article 16, thereby «any judgmentopening insolvency proceedings handed down by a court of a Member Statewhich has jurisdiction pursuant to Article 3 shall be recognised in all theother Member States from the time that it becomes effective in the State ofthe opening of proceedings». ECJ stated that under article 16 lays down «arule on priority based on a chronological criterion in favor of the openingdecision which was handed down first»29.

IV.2. APPLICABLE LAW

Articles 4-15 established a catalogue of uniform conflict rules. The ad-vantage of this solution is undoubtful: all the insolvency proceedings that areopened within the European Union territory are subject to the same choiceof law rules. These rules will determine in a given situation which nationallaw, between those of several States connected with the case, shall governissues arisen from the insolvency proceedings. Although achieving a set ofuniform rules has turned out to be an impossible mission because of thewide difference between the interest and national policies of Member States,the recourse to the technique of conflict rules has been a practical way to

29. ECJ 2 May 2006, Eurofood IFSC, C-341/04 (TJCE 2006, 126), par. 26-37, par. 49. Asexplained by S. BARIATTI («Recent Case-Law concerning Jurisdiction and the Recog-nition of Judgments under the European Insolvency Regulation», RabelsZ, 2009, pp.641-642): «article 16 is not a rule on lis pendens since (...) it does not regulate theeffects of the pending of two concurring main proceedings in two Member States,imposing that court second seized stay its proceedings until the court first seizeddecides on its own jurisdiction. Article 16 EIR, as interpreted by the ECJ, simplyindicates the moment in time when the decision opening insolvency proceedingsproduces its effects in the Member State of origin. Since the control of the foreignjudgment is very limited, recognition is actually expected to be the rule. Con-sequently, it is possible that parallel proceedings concerning the insolvency of thesame debtor are carried out in two Member States until one court adopts a decisionopening insolvency proceedings whose effects will be deployed in all Member States.The race will be won by the fastest court that enjoys the swiftest track under domesticlaw: its decision should be recognised even if this court was seized as second sincethe control of its jurisdiction by the other court is precluded».

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reach to a uniform solution and to provide economic agents with the legalcertainty needed in an international economic context.

IV.2.1. Lex fori concursis as basic rule

As explained above, IER contains uniform conflict rules in respect ofthe insolvency proceedings covers by the Regulation. The general rule is thatthe law of the Member State in which proceedings are opened will largedetermine all the effects of those proceedings, including the conditions foropening them, their conduct or closure (this law is widely known as lex con-cursus)30.

However, there are a number of significant exceptions to this rule of thelex concursus that aim to «protect legitimate expectations and the certainty oftransactions in Member States»31. Article 4 sets out a non-exhaustive list ofmatters covers and regulated by the lex concursus. So, the law of the State ofthe opening of proceedings shall determine the conditions for the openingof those proceedings, their conduct and their closure and, in particular:

(a) The kind of debtors insolvency against whom proceedings may bebrought32;

(b) The conditions for the opening of proceedings33;

(c) The powers of the debtor and the officeholder once proceedingshave been opened34;

(d) The assets that are part of the estate35;

(e) The effects of the insolvency proceedings on current contracts towhich the debtor is party and on proceedings brought by individualcreditors36;

30. Vid. L. DANIELE, «Legge applicabile e diritto uniforme nel regolamento comunitariorelativo alla procedure di insolvenza», Rivista di diritto internazionale privato e pro-cessuale, 2002, pp. 33-50.

31. Recital 24.32. Article 4.2.a).33. Article 4.2.34. Article 4.2.c).35. Article 4.2.b).36. Article 4.2.e).

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