Request for a preliminary ruling from the Juzgado de lo Mercantil n.º 3 de Gijón (Spain) lodged on 28 November 2023 – Agencia Estatal de la Administración Tributaria v VT, UP

(Case C-723/23, Amilla ¹ )

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil n.º 3 de Gijón

Parties to the main proceedings

Applicant: Agencia Estatal de la Administración Tributaria

Defendants: VT und UP

Questions referred

Must Article 23(1) of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 of the European Parliament and of the Council relating to certain aspects of company law (Directive on restructuring and insolvency) ¹ be interpreted as precluding a national provision such as Article 487(1)(4) of the Recast Text of the Insolvency Law, following the wording given to it by Law 16/2022 of 5 September, where it includes, in the concept of dishonest action or bad faith on the part of the debtor actions relating to creditors of third parties, other than those which make up the list of creditors for his or her own personal insolvency?

Is Article 487(1)(4) of the Recast Text of the Insolvency Law, following the wording given to it by Law 16/2022 of 5 September, consistent with Article 20 of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 of the European Parliament and of the Council relating to certain aspects of company law (Directive on restructuring and insolvency), given that it provides for an exception within the second-chance procedure which prevents it culminating in a full discharge of debts?

Is Article 487(1)(4) of the Recast Text of the Insolvency Law, following the wording given to it by Law 16/2022 of 5 September, consistent with Article 20(2) and recital 79 of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 of the European Parliament and of the Council relating to certain aspects of company law (Directive on restructuring and insolvency), given that the national provision does not provide for the debtor’s individual situation, setting out an exception which is objective in nature, without any possibility of the Spanish courts being able to assess the subjective circumstances of a debtor accessing the second-chance procedure?

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¹ The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

¹ OJ 2019 L 172, p. 18.