Language of document :

Request for a preliminary ruling from the Rechtbank Midden-Nederland (Netherlands) lodged on 29 September 2020 – ZK, in his capacity as successor to JM, liquidator in the bankruptcy of BMA Nederland BV v BMA Braunschweigische Maschinenbauanstalt AG and Stichting Belangbehartiging Crediteuren BMA Nederland

(Case C-498/20)

Language of the case: Dutch

Referring court

Rechtbank Midden-Nederland

Parties to the main proceedings

Applicant: ZK, in his capacity as successor to JM, liquidator in the bankruptcy of BMA Nederland BV

Defendant: BMA Braunschweigische Maschinenbauanstalt AG

Intervener: Stichting Belangbehartiging Crediteuren BMA Nederland

Questions referred

(a)    Must the term ‘place where the harmful event occurred’ in Article 7, point 2, of Regulation (EU) No 1215/2012 1 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (OJ 2012 L 351, p. 1; ‘Brussels Ia Regulation’) be interpreted as meaning that ‘the place of the event giving rise to the damage’ (Handlungsort) is the place of establishment of the company which offers no redress for the claims of its creditors, if that lack of redress is the result of a breach by that company’s grandparent company of its duty of care towards those creditors?

(b)    Must the term ‘place where the harmful event occurred’ in Article 7, point 2, of the Brussels Ia Regulation be interpreted as meaning that ‘the place where the damage occurred’ (Erfolgsort) is the place of establishment of the company which offers no redress for claims of its creditors, if that lack of redress is the result of a breach by that company’s grandparent company of its duty of care towards those creditors?

(c)    Are additional circumstances required which justify the jurisdiction of the courts of the place of establishment of the company which offers no redress and, if so, what are those circumstances?

(d)    Does the fact that the Netherlands liquidator of the company which offers no redress for the claims of its creditors has, by virtue of his statutory duty to wind up the estate, made a claim for damages arising from tort/delict for the benefit of (but not on behalf of) the general body of creditors affect the determination of the competent court on the basis of Article 7, point 2, of the Brussels Ia Regulation? Such a claim implies that there is no room for an examination of the individual positions of the individual creditors and that the third party concerned cannot avail itself of all the defences against the liquidator which it might have been able to use in respect of certain individual creditors.

(e)    Does the fact that a portion of the creditors for whose benefit the liquidator makes the claim have their domicile outside the territory of the European Union affect the determination of the competent court on the basis of Article 7, point 2, of the Brussels Ia Regulation?

Would the answer to Question 1 be different in the case of a claim made by a foundation which has as its purpose the protection of the collective interests of creditors who have suffered damage as referred to in Question 1? Such a collective claim implies that the proceedings would not determine (a) the domiciles of the creditors in question, (b) the particular circumstances giving rise to the claims of the individual creditors against the company and (c) whether a duty of care as referred to above exists in respect of the individual creditors and whether it has been breached.

Must Article 8, point 2, of Brussels Regulation Ia be interpreted as meaning that, if the court seised of the original proceedings reverses its decision that it has jurisdiction in respect of those proceedings, such a reversal also automatically excludes its jurisdiction in respect of the claims made by the intervening third party?

(a)    Must Article 4(1) of Regulation (EC) No 864/2007 2 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (OJ 2007 L 199, p. 40) (‘Rome II Regulation’) be interpreted as meaning that ‘the place where the damage occurs’ is the place where the company which offers no redress for the damage suffered by its creditors as a result of the breach of the duty of care referred to above has its registered office?

(b)    Does the fact that the claims have been made by a liquidator by virtue of his statutory duty to wind up the estate and by a representative of collective interests for the benefit of (but not on behalf of) the general body of creditors affect the determination of that place?

(c)    Does the fact that some of the creditors are domiciled outside the territory of the European Union affect the determination of that place?

(d)    Is the fact that there were financing agreements between the Netherlands bankrupt company and its grandparent company which nominated the German courts as the forum of choice and declared German law to be applicable a circumstance which makes the alleged tort/delict of BMA AG manifestly more closely connected with a country other than the Netherlands within the meaning of Article 4(3) of the Rome II Regulation?

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1 OJ 2012 L 351, p. 1.

2 OJ 2007 L 199, p. 40.