JUDGMENT OF THE COURT (Fourth Chamber)

14 November 2018 (*)

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Insolvency proceedings — Regulation (EC) No 1346/2000 — Article 3(1) — International jurisdiction — Action to set a transaction aside — Exclusive jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened)

In Case C‑296/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), made by decision of 12 May 2017, received at the Court on 22 May 2017, in the proceedings

Wiemer & Trachte GmbH, in liquidation,

v

Zhan Oved Tadzher,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Seventh Chamber, acting as President of the Fourth Chamber, K. Jürimäe (Rapporteur), C. Lycourgos, E. Juhász and C. Vajda, Judges,

Advocate General: N. Wahl,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 3 May 2018,

after considering the observations submitted on behalf of:

–        Wiemer & Trachte GmbH, by A. Ganev, S. Simeonov and V. Bozhilov, advokati,

–        the European Commission, by M. Wilderspin, G. Koleva and M. Heller, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 June 2018,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 3(1), Article 18(2) and Articles 21 and 24 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).

2        The request has been made in proceedings between Wiemer & Trachte GmbH, a company in liquidation, and Mr Zhan Oved Tadzher concerning the repayment by that person of a sum of money which was transferred to him from Wiemer & Trachte’s bank account without the provisional liquidator’s consent.

 Legal context

 European Union law

 Regulation No 1346/2000

3        Recitals 2 and 6 to 8 of Regulation No 1346/2000 state:

‘(2)      The proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently and effectively and this Regulation needs to be adopted in order to achieve this objective which comes within the scope of judicial cooperation in civil matters within the meaning of Article 65 [EC].

(6)      In accordance with the principle of proportionality this Regulation should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings. In addition, this Regulation should contain provisions regarding the recognition of those judgments and the applicable law which also satisfy that principle.

(7)      Insolvency proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings are excluded from the scope of the [convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36)].

(8)      In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects, it is necessary, and appropriate, that the provisions on jurisdiction, recognition and applicable law in this area should be contained in [an EU] law measure which is binding and directly applicable in Member States.’

4        Under Article 3(1) and (2) of that regulation:

‘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.’

5        Article 16(1) of that regulation provides:

‘Any judgment opening insolvency proceedings handed down by a court of a Member State which has jurisdiction pursuant to Article 3 shall be recognised in all the other Member States from the time that it becomes effective in the State of the opening of proceedings.

…’

6        Under Article 18 of that regulation:

‘1.      The liquidator appointed by a court which has jurisdiction pursuant to Article 3(1) may exercise all the powers conferred on him by the law of the State of the opening of proceedings in another Member State, as long as no other insolvency proceedings have been opened there nor any preservation measure to the contrary has been taken there further to a request for the opening of insolvency proceedings in that State. He may in particular remove the debtor’s assets from the territory of the Member State in which they are situated, subject to Articles 5 and 7.

2.      The liquidator appointed by a court which has jurisdiction pursuant to Article 3(2) may in any other Member State claim through the courts or out of court that moveable property was removed from the territory of the State of the opening of proceedings to the territory of that other Member State after the opening of the insolvency proceedings. He may also bring any action to set aside which is in the interests of the creditors.

…’

7        Under Article 21 of Regulation No 1346/2000:

‘1.      The liquidator may request that notice of the judgment opening insolvency proceedings and, where appropriate, the decision appointing him, be published in any other Member State in accordance with the publication procedures provided for in that State. Such publication shall also specify the liquidator appointed and whether the jurisdiction rule applied is that pursuant to Article 3(1) or Article 3(2).

2.      However, any Member State within the territory of which the debtor has an establishment may require mandatory publication. In such cases, the liquidator or any authority empowered to that effect in the Member State where the proceedings referred to in Article 3(1) are opened shall take all necessary measures to ensure such publication.’

8        Article 24 of that regulation provides:

‘1.      Where an obligation has been honoured in a Member State for the benefit of a debtor who is subject to insolvency proceedings opened in another Member State, when it should have been honoured for the benefit of the liquidator in those proceedings, the person honouring the obligation shall be deemed to have discharged it if he was unaware of the opening of proceedings.

2.      Where such an obligation is honoured before the publication provided for in Article 21 has been effected, the person honouring the obligation shall be presumed, in the absence of proof to the contrary, to have been unaware of the opening of insolvency proceedings; where the obligation is honoured after such publication has been effected, the person honouring the obligation shall be presumed, in the absence of proof to the contrary, to have been aware of the opening of proceedings.’

9        Under Article 25(1) of that regulation:

‘Judgments handed down by a court whose judgment concerning the opening of proceedings is recognised in accordance with Article 16 and which concern the course and closure of insolvency proceedings, and compositions approved by that court shall also be recognised with no further formalities. …

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.

The first subparagraph shall also apply to judgments relating to preservation measures taken after the request for the opening of insolvency proceedings.’

 Regulation (EC) No 44/2001

10      Under Article 1(1) and (2)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1):

‘1.      This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

2.      The Regulation shall not apply to:

(b)      bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

…’

 Bulgarian law

11      Article 17a of the Targovski zakon (Law on Commerce) provides:

‘1.      Any branch of a non-resident person, registered with a right to engage in commercial activity in accordance with its national law, shall be entered in the Commercial Register.

3.      The following information shall be entered in the register:

(3)      the information derived from all acts of the competent insolvency court which are entered in the register in which the non-resident person has been entered, together with, where appropriate, the information derived from the decisions referred to in Article 759(1) and Article 760(3);

5.      The information referred to in paragraph 3(2), (3) and (4) may also be entered ex officio on the basis of a notification from the register of another Member State of the European Union in which the non-resident person is entered, received via the system of interconnection of the registers of the Member States.’

12      Under Article 15 of the Zakon za targovskia register (Law on the Commercial Register):

‘1.      Entry, expungement and disclosure may be applied for by:

(1)      … the merchant or non-profit legal person;

(2)      … the proxy;

(3)      … another person in the cases provided for by law;

(4)      … a lawyer with an express mandate, established in accordance with the conditions laid down by the Law on the Legal Profession with a view to the representation of the merchant or non-profit legal person before the Agency.

…’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

13      Wiemer & Trachte is a limited liability company whose registered office is in Dortmund (Germany). By decision of 10 May 2004, the Sofiyski gradski sad (Sofia City Court, Bulgaria) ordered that a branch of Wiemer & Trachte in Bulgaria be entered in the Bulgarian Commercial Register.

14      By order of 3 April 2007, the Amtsgericht Dortmund (Local Court, Dortmund, Germany), in the context of opening insolvency proceedings concerning Wiemer & Trachte, designated a provisional liquidator and decided that no disposals of assets by that company could take effect without the consent of that liquidator. That first order was entered in the German Commercial Register on 4 April 2007. By a second order made on 21 May 2007 and entered in that register on 24 May 2007, that court placed a general prohibition on Wiemer & Trachte disposing of its assets. By a third order made by that court on 1 June 2007, that company’s assets were made the subject of insolvency proceedings. That third order was entered in the register on 5 June 2007.

15      On 18 and 20 April 2007, respectively, amounts of EUR 2 149.30 and EUR 40 000 were transferred from Wiemer & Trachte’s account at Obedinena Balgarska banka AD (United Bulgarian Bank), via the managing director of the Bulgarian branch of Wiemer & Trachte, to an account in the name of Mr Tadzher by way of a ‘declaration of travel expenses’ and an ‘advance on business expenses’, respectively.

16      Wiemer & Trachte therefore brought an action against Mr Tadzher before the Sofiyski gradski sad (Sofia City Court), claiming that those banking transactions were invalid because they had taken place after the insolvency proceedings were opened. It sought repayment of the amounts referred to in paragraph 15 above, together with statutory interest, to the insolvency estate.

17      Mr Tadzher contended that the Sofiyski gradski sad (Sofia City Court) lacked jurisdiction to hear the case in the main proceedings and that the amount corresponding to the advance on business expenses had not been used and had been repaid to Wiemer & Trachte on 25 April 2007.

18      The objection of a lack of jurisdiction was rejected by the Sofiyski gradski sad (Sofia City Court) and on appeal by the Apelativen sad (Court of Appeal, Bulgaria). By order of 28 January 2013 the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) considered that the appeal brought on a point of law against the order made by the Apelativen sad (Court of Appeal) was inadmissible and that that order, which recognised the jurisdiction of the Sofiyski gradski sad (Sofia City Court) to decide the case on the merits had acquired the force of res judicata.

19      The Sofiyski gradski sad (Sofia City Court) upheld the action brought by Wiemer & Trachte on the merits. Mr Tadzher lodged an appeal against that judgment. On 26 July 2016 the Apelativen sad (Court of Appeal) set aside that judgment and dismissed the request for repayment of the amounts referred to in paragraph 15 above as unfounded and unsubstantiated.

20      Wiemer & Trachte therefore brought an appeal on a point of law before the Varhoven kasatsionen sad (Supreme Court of Cassation) against the judgment of the Apelativen sad (Court of Appeal), claiming that Article 24 of Regulation No 1346/2000 was not applicable to the dispute in the main proceedings and that, accordingly, Mr Tadzher could not claim to have been unaware of the opening of the insolvency proceedings concerning Wiemer & Trachte.

21      In those circumstances, the Varhoven kasatsionen sad (Supreme Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is Article 3(1) of [Regulation No 1346/2000] to be interpreted as meaning that the jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened to hear and determine an action to set a transaction aside by virtue of the debtor’s insolvency which has been brought against a defendant whose registered office or habitual residence is in another Member State is exclusive, or, in the case of Article 18(2) of that regulation, is the liquidator empowered to bring an action to set aside before a court in the Member State within the territory of which the defendant has his registered office or habitual residence, where the action to set aside brought by the liquidator is based on a disposal of moveable assets carried out in the other Member State?

(2)      Is an obligation which was honoured for the benefit of the debtor in one Member State, via the managing director of an establishment of the debtor company registered in that Member State, deemed to have been discharged, in accordance with Article 24(2) in conjunction with Article 24(1) of Regulation No 1346/2000, where, at the time when that obligation was honoured, a request for the opening of insolvency proceedings in respect of the debtor’s assets had been made and a provisional liquidator had been appointed in another Member State, but no judgment opening insolvency proceedings had been delivered?

(3)      Does Article 24(1) of Regulation No 1346/2000, on the honouring of an obligation, apply to the payment of a sum of money to the debtor, where the original transfer of that sum from the debtor to the person honouring the obligation is regarded as being invalid under the national law of the insolvency court and that invalidity follows from the opening of the insolvency proceedings?

(4)      Does the presumption of a lack of awareness provided for in Article 24(2) of Regulation No 1346/2000 apply where the authorities referred to in the second sentence of Articl