Judgment of the Court (Third Chamber) of 18 April 2024 (requests for a preliminary ruling from the Juzgado de lo Mercantil de Palma de Mallorca - Spain) - Luis Carlos and Others v Air Berlin Luftverkehrs KG, Sucursal en España (C-765/22) and Victoriano and Others v Air Berlin Luftverkehrs KG, Sucursal en España, Air Berlin PLC & Co. Luftverkehrs KG (C-772/22)
(Joined Cases C-765/22 and C-772/22, 1 Luis Carlos and Others)
(Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) 2015/848 – Insolvency proceedings – Main insolvency proceedings in Germany and secondary insolvency proceedings in Spain – Challenge to the inventory of assets and the list of creditors submitted by the insolvency practitioner in the secondary insolvency proceedings – Classification of employees’ claims – Date to be taken into account – Transfer of assets situated in Spain to Germany – Composition of the estate in secondary insolvency proceedings – Time parameters to be taken into consideration)
Language of the case: Spanish
Referring court
Juzgado de lo Mercantil de Palma de Mallorca
Parties to the main proceedings
Applicants: Luis Carlos, Severino, Isidora, Angélica, Paula, Luis Francisco, Delfina (C-765/22), Victoriano, Bernabé, Jacinta, Sandra, Patricia, Juan Antonio, Verónica (C-772/22)
Defendants: Air Berlin Luftverkehrs KG, Sucursal en España (C-765/22), Air Berlin Luftverkehrs KG, Sucursal en España, Air Berlin PLC & Co. Luftverkehrs KG (C-772/22)
Operative part of the judgment
Articles 7 and 35 of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, read in conjunction with recital 72 of that regulation,
must be interpreted as meaning that the law of the State of the opening of the secondary insolvency proceedings is to apply only to the treatment of claims arising after the opening of those proceedings, and not to the treatment of claims arising between the opening of the main insolvency proceedings and the opening of the secondary insolvency proceedings.
Article 3(2) and Article 34 of Regulation 2015/848
must be interpreted as meaning that the assets situated in the State of the opening of the secondary insolvency proceedings comprise only the assets which are situated within the territory of that Member State at the time of the opening of those proceedings.
Article 21(1) of Regulation 2015/848
must be interpreted as meaning that the insolvency practitioner in the main insolvency proceedings may remove the debtor’s assets from the territory of a Member State other than that of the main insolvency proceedings, where it is apparent to that practitioner, first, that there are local creditors with claims arising from employment contracts that have been recognised by judgments and, second, that there is a protective attachment of assets ordered by an employment court of the latter Member State.
Article 21(2) of Regulation 2015/848
must be interpreted as meaning that the insolvency practitioner in the secondary insolvency proceedings may bring an action to set aside against an act that was performed by the insolvency practitioner in the main insolvency proceedings.
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1 OJ C 121, 3.4.2023.