OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 30 April 2020 (1)

Case C253/19

MH,

NI

v

OJ,

Novo Banco SA

(Request for a preliminary ruling from the Tribunal da Relação de Guimarães (Court of Appeal, Guimarães, Portugal))

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Insolvency proceedings — International jurisdiction — Centre of a debtor’s main interests)






I.      Introduction

1.        The concept of the ‘centre of main interests’ formed the cornerstone of the system established by Regulation (EC) No 1346/2000. (2) That concept was set out in Article 3(1) of that regulation, and was used as a connecting factor designating the courts having jurisdiction to open insolvency proceedings against a debtor. The way in which that concept should be interpreted had been largely clarified by the case-law of the Court relating to proceedings against legal persons. (3) However, the Court had not yet had the opportunity to address the interpretation of that concept in the context of natural persons not exercising an independent business or professional activity who benefit from the free movement of persons and workers.

2.        Regulation No 1346/2000 was repealed by Regulation (EU) 2015/848, (4) which also uses the concept of ‘centre of main interests’. The question in the present case is as follows: can the Court’s case-law, developed within the framework of Regulation No 1346/2000 and relating to that concept, be transposed — and if so, to what extent — to proceedings against a natural person who is in the situation referred to above? This case thus provides the Court with the opportunity to rule on jurisdiction in insolvency matters in relation to any person not pursuing an activity as a self-employed person who exercises his right of free movement, and whose assets are located in the Member State of his former habitual residence.

II.    Legal framework

3.        Article 3 of Regulation 2015/848, entitled ‘International jurisdiction’, provides in paragraph 1:

‘The courts of the Member State within the territory of which the centre of the debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings (“main insolvency proceedings”). The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

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. That presumption shall only apply if the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of an individual exercising an independent business or professional activity, the centre of main interests shall be presumed to be that individual’s principal place of business in the absence of proof to the contrary. That presumption shall only apply if the individual’s principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.’

III. The facts of the dispute in the main proceedings, the question referred for a preliminary ruling and the proceedings before the Court

4.        The applicants are married to each other and, since 2016, have been resident in Norfolk (United Kingdom), where they are engaged in paid employment. The couple made a request to the Portuguese courts to declare them insolvent. The court of first instance declared that it did not have international jurisdiction to rule on their request, holding that, under the fourth subparagraph of Article 3(1) of Regulation 2015/848, the centre of their main interests was their place of habitual residence, namely the United Kingdom.

5.        The applicants brought an appeal against that judgment before the referring court, claiming that it was based on a misinterpretation of the rules laid down by Regulation 2015/848. In that regard, they submitted that, in so far as the sole immovable asset that they owned was located in Portugal, where all the transactions which gave rise to their insolvency had occurred, the centre of their main interests was not their place of habitual residence (United Kingdom), but was located in Portugal. Moreover, they claimed that there is no connection between their current place of residence and the events that led to their insolvency, which occurred entirely in Portugal.

6.        The referring court has doubts as to the correct interpretation of Article 3(1) of Regulation 2015/848 and is uncertain, in particular, of the criteria to be used for the purpose of rebutting the simple presumption laid down in that provision for natural persons not exercising an independent business or professional activity, according to which, for such persons, the habitual residence of the concerned party is presumed to be the centre of that party’s main interests in the absence of proof to the contrary.

7.        In that regard, the referring court points out that recital 30 of that regulation states that, in the case of natural persons not exercising an independent business or professional activity, it should be possible to rebut that presumption, for example where the major part of the debtor’s assets is located outside the Member State of the debtor’s habitual residence.

8.        In those circumstances, by decision of 14 February 2019, received at the Registry of the Court on 26 March 2019, the referring court decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Under Regulation [2015/848], do the courts of a Member State have jurisdiction to open main insolvency proceedings in respect of a citizen whose sole immovable asset is located in that State, whereas he, along with his family unit, is habitually resident in another Member State where he is in paid employment?’

9.        Written observations have been submitted by the Portuguese Government and the European Commission. Since none of the parties concerned requested a hearing, the Court has decided to give judgment without holding one.

IV.    Analysis

10.      By its question, the referring court asks, in essence, whether Article 3(1), first and fourth subparagraphs, of Regulation 2015/848 must be interpreted as meaning that it is possible to rebut the presumption set out in that fourth subparagraph in favour of a Member State in the territory of which the sole immovable asset of the debtor, a natural person not exercising an independent business or professional activity, is located. If that is not the case, that court wishes to know which conditions must be met in order for that presumption to be rebutted in favour of that Member State.

11.      I must point out that, in the question which it has referred for a preliminary ruling, the referring court does not specify the provisions of Regulation 2015/848 which it seeks to have interpreted. However, it is clear from the request for a preliminary ruling that that court has doubts as to the interpretation to be given to Article 3(1), first and fourth subparagraphs, of that regulation. I propose, therefore, that the question referred for a preliminary ruling should be understood in accordance with the wording used in point 10 of this Opinion. Indeed, it is settled case-law that, where necessary, the Court may have to reformulate the questions referred to it. The Court may also decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question. (5)

12.      In that context, in accordance with Article 3(1), first and fourth subparagraphs, of Regulation 2015/848, it is the courts of the Member State within the territory of which the centre of the debtor’s main interests is located which have jurisdiction to open the main insolvency proceedings. (6) In the case of natural persons not exercising an independent business or professional activity, the centre of their main interests is presumed, in the absence of proof to the contrary, to be the place of their habitual residence. (7) It is not disputed that the applicants fall into that category of persons.

13.      Consequently, if the centre of the applicants’ main interests is the place of their habitual residence, namely the United Kingdom, the Portuguese courts would not have jurisdiction to open insolvency proceedings. In order for them to have such jurisdiction, the presumption set out in Article 3(1), fourth subparagraph, of Regulation 2015/848 would have to be rebutted in favour of the Member State within the territory of which the applicants’ sole immovable asset is located, namely Portugal. In order to give a useful answer to the question referred, it is necessary, first of all, to determine the circumstances in which that presumption may be rebutted and, secondly, to determine the conditions which must be met in order for the courts of a Member State other than that of habitual residence to have jurisdiction under Article 3(1), first subparagraph, of that regulation.

14.      The Portuguese Government takes the view that the fact of being the owner of a sole immovable asset located in another Member State cannot, as a rule, be regarded as sufficient to rebut that presumption. The Commission considers that that presumption may be rebutted only if the sole immovable asset owned by the debtor is located in another Member State and constitutes the major part of the debtor’s assets, and if there are overriding factors which indicate clearly that the centre of the debtor’s main interests is located in that Member State.

15.      In that context, while the view of the Portuguese Government is based largely on the Court’s case-law relating to the regulation which preceded Regulation 2015/848, namely Regulation No 1346/2000, the Commission appears to be more reticent as regards the applicability of that case-law to the circumstances of the present case. Indeed, the Commission states that, in order to determine whether the presumption in Article 3(1), fourth subparagraph, of Regulation 2015/848 can be rebutted, it is necessary to take into account the case-law relating to the Convention on the law applicable to contractual obligations. (8) In essence, the Commission argues, it is necessary to examine whether it appears from the circumstances that a situation is more closely connected with a Member State other than that covered by the presumption.

16.      In order to provide a useful response to the referring court, I shall examine, first of all, the applicability of Regulation 2015/848 in the main proceedings (Section A). I shall then consider whether the case-law developed within the framework of Regulation No 1346/2000 can be transposed to the circumstances of the present case in the light of Regulation 2015/848 (Section B). Finally, I shall examine whether those circumstances are capable of rebutting the presumption in Article 3(1), fourth subparagraph, of Regulation 2015/848, and of allowing the Portuguese courts to assume jurisdiction under Article 3(1), first subparagraph, of that regulation (Section C).

A.      Applicability of Regulation 2015/848

17.      The referring court states that it is necessary to interpret Regulation 2015/848 in order to determine whether the Portuguese courts have jurisdiction to open insolvency proceedings in respect of the applicants.

18.      In that regard, according to Article 92 thereof, Regulation 2015/848 is to apply, in principle, from 26 June 2017. Moreover, under Article 84(1), the provisions of that regulation are to apply only to insolvency proceedings opened as from that date.

19.      The question whether it was appropriate to open insolvency proceedings at the request of the applicants probably arose after they had established their habitual residence in the United Kingdom, namely in 2016. It cannot therefore be ruled out, as submitted by the referring court, that Regulation 2015/848 applies to the request made by the applicants before the Portuguese court. Therefore, in the absence of any circumstances capable of supporting the conclusion that Regulation 2015/848 does not apply to the dispute in the main proceedings, and taking into account the division of tasks between the Court of Justice and the referring court, I consider that it is indeed Regulation 2015/848 which requires interpretation in the present case.

20.      For the sake of completeness, I note that recital 25 of Regulation 2015/848 states that that regulation applies only to proceedings in respect of a debtor whose centre of main interests is located within the European Union. In Schmid, (9) the Court confirmed the binding nature of that principle, which was set out in a similar recital of Regulation No 1346/2000. It follows that the fact that a debtor is resident in a Member State which does not apply that regulation, or in a third country, does not automatically preclude the application of that regulation in regard to that debtor. In any event, as regards the probable date on which the Portuguese court was seised, the United Kingdom did not fall into either of those categories. Recital 87 of Regulation 2015/848 recalls that the United Kingdom took part in the adoption and application of that regulation. (10)

B.      The relevance of the earlier case-law relating to Regulation No 1346/2000 in the light of Regulation 2015/848

21.      In the context of Regulation 2015/848, as in that of Regulation No 1346/2000, the concept of the ‘centre of main interests’ is used as a connecting factor for the rule on jurisdiction laid down in Article 3(1) of those regulations, which makes it possible to determine which courts have jurisdiction to open main insolvency proceedings. Moreover, in Regulation 2015/848, as in the preceding regulation, the connecting factor constituted by the centre of main interests indirectly determines the law applicable to matters concerning insolvency. (11)

22.      According to settled case-law, the concept of the ‘centre of main interests’ in Article 3(1) of Regulation No 1346/2000 has an autonomous meaning and must therefore be interpreted in a uniform way, independently of national legislation. (12) As can be seen in point 21 of the present Opinion, at least broadly speaking, Regulation 2015/848 incorporates the same solutions as Regulation No 1346/2000. The concept of the ‘centre of main interests’ must therefore continue to be regarded as an autonomous concept of EU law.

23.      In that context, it is, admittedly, true that, unlike its predecessor, Regulation 2015/848 does not apply solely to procedures entailing the partial or total divestment of an insolvent debtor. (13) However, in view of the continuity between those two regulations, the fact that the material scope of Regulation 2015/848 was extended is not capable of altering significantly the way in which the concept of the ‘centre of main interests’ should be interpreted. That interpretation is supported by the fact that, sometimes, if the applicable law on insolvency so provides, during the course of proceedings, the nature of those proceedings may be changed. Indeed, according to the rule known as the ‘principle of perpetuatio fori’, the jurisdiction of the court seised should not be affected by that fact.

24.      By contrast, in so far as Regulation 2015/848 concerns natural persons not engaged in a self-employed activity, the solutions contained in that regulation, as regards clarifying the meaning of the concept of the ‘centre of main interests’, and the presumptions provided for in that regulation may raise doubts as to the applicability of the earlier case-law in the light of that regulation.

1.      The concept of the ‘centre of main interests’

25.      Regulation No 1346/2000 did not provide a definition of the concept of the ‘centre of main interests’. Under that regulation, the scope of that concept was, however, clarified in recital 13 thereof, according to which ‘the “centre of main interests” should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties’. The definition used in the second sentence of the first subparagraph of Article 3(1) of Regulation 2015/848 corresponds, in principle, to the definition of the concept of the ‘centre of main interests’ given in recital 13 of Regulation No 1346/2000.

26.      However, recital 13 of Regulation No 1346/2000 appeared to acknowledge a link between the place where the debtor conducts the administration of its interests on a regular basis and the fact that that place should be ascertainable by third parties. That recital stated that ‘the “centre of main interests” should correspond to the place where the debtor conducts the administration of its interests on a regular basis and is therefore ascertainable by third parties’. (14) By contrast, the term ‘therefore’ is not used in the second sentence of the first subparagraph of Article 3(1) of Regulation 2015/848. (15)

27.      However, I do not think that that nuance is capable of altering significantly the way in which the location of the centre of a debtor’s main interests should be determined by comparison with the way in which its location was determined under Regulation No 1346/2000.

28.      The reference to the place which ‘is therefore ascertainable by third parties’ implied that the place where the debtor conducted the administration of its interests on a regular basis had to be identified by reference to objective criteria, and that this was necessary in order for that place to be ascertainable by third parties. Accordingly, the Court’s approach thus far, in its case-law relating to Regulation No 1346/2000, has been that the centre of main interests must be identified by reference to criteria which are both objective and ascertainable by third parties. (16)

29.      As regards Regulation 2015/848, the use of objective criteria remains essential in order to ensure that a rule on jurisdiction guarantees legal certainty and predictability as regards the determination of the court having jurisdiction. That legal certainty and that predictability are all the more important in that, as under Regulation No 1346/2000, determination of the court having jurisdiction entails, in accordance with Article 7(1) of Regulation 2015/848, determination of the applicable law. (17)

30.      Moreover, another specific objective of the rules on jurisdiction and conflict-of-law rules in Regulation 2015/848 is, as set out in recital 5 thereof, to ‘avoid incentives for parties to transfer assets or judicial proceedings from one Member State to another, seeking to obtain a more favourable legal position to the detriment of the general body of creditors (forum shopping)’. The use of objective criteria to determine the location of the centre of main interests also makes it possible to limit recourse to such practices by debtors.

31.      In the light of the foregoing, under Regulation 2015/848, the place where the debtor conducts the administration of its interests on a regular basis must be determined by reference to objective criteria which are ascertainable by third parties.

2.      The presumptions provided for in Regulation 2015/848

32.      The EU legislature did not merely reproduce recital 13 of Regulation No 1346/2000 and give it binding effect in Regulation 2015/848. Indeed, while Regulation No 1346/2000 provided only a presumption concerning companies and legal persons, Article 3(1), second to fourth subparagraphs, of Regulation 2015/848 establishes three different presumptions which apply to three categories of debtors, namely, first, companies and legal persons, secondly, natural persons exercising an independent business or professional activity, and, thirdly, any other natural persons.

33.      Furthermore, the EU legislature introduced limitations under which the presumptions in Article 3(1), second to fourth subparagraphs, of Regulation 2015/848 are not applicable in the period after the place presumed to be the centre of main interests has been moved. That period is six months for natural persons not engaged in a self-employed activity and three months for the other two categories of debtors. I am of the opinion that that distinction arises from the fact that, in the case of natural persons, it is easier for the place presumed to be the centre of main interests to be moved. In any event, those limitations do not appear to be relevant in the context of the present case. (18)

34.      As regards natural persons not engaged in a self-employed activity, the presumption provided for in Article 3(1), fourth subparagraph, of Regulation 2015/848 is that the centre of main interests of such persons is, in the absence of proof to the contrary, their place of habitual residence. The question referred for a preliminary ruling concerns precisely that aspect, that is to say, whether, given that the applicants’ sole immovable asset is located in Portugal, the presumption may be rebutted in favour of that Member State.

35.      In that context, the nature of the presumptions provided for in Article 3(1) of Regulation 2015/848, including the presumption in the fourth subparagraph of that provision, may give rise to some doubt in view of the wording of Article 4(1) of that regulation, according to which a court hearing a request for the opening of insolvency proceedings must of its own motion examine whether it has jurisdiction pursuant to Article 3 of that regulation. Furthermore, recital 27 of that regulation states that ‘before opening insolvency proceedings, the competent court should examine of its own motion whether the centre of the debtor’s main interests or the debtor’s establishment is actually located within its jurisdiction’.

36.      A reading of the subsequent recitals of Regulation 2015/848 supports the interpretation that the obligation to examine of its own motion the issue of jurisdiction is incumbent on the court seised, even where one of the presumptions provided for in Article 3(1) of that regulation is concerned. Indeed, while recitals 30 and 31 of Regulation 2015/848 concern presumptions, recital 32 of that regulation states that ‘in all cases, where the circumstances of the matter give rise to doubts about the court’s jurisdiction, the court should require the debtor to submit additional evidence to support its assertions and, where the law applicable to the insolvency proceedings so allows, give the debtor’s creditors the opportunity to present their views on the question of jurisdiction’. (19)

37.      To require a court to examine where the centre of a debtor’s main interests is actually located seems a priori difficult to reconcile with the concept of presumptions, in so far as presumptions are introduced, in essence, to relieve the court of the obligation to examine the circumstances of the case.

38.      Faced with that apparent contradiction, I feel that it is necessary to point out that, although Regulation No 1346/2000 did not contain a provision similar to Article 4(1) of Regulation 2015/848, it nevertheless provided, in the same way as Regulation 2015/848, a presumption relating to the centre of main interests, which concerned companies and legal persons.

39.      That did not prevent the Court from finding, in Eurofood IFSC, (20) that it is inherent in the principle of mutual trust that the court of a Member State hearing a request for the opening of main insolvency proceedings must check that it has jurisdiction having regard to Article 3(1) of Regulation No 1346/2000, that is to say, examine whether the centre of the debtor’s main interests is located in that Member State.

40.      It follows that the obligation laid down in Article 4(1) of Regulation 2015/848 was already incumbent on the courts of the Member States while Regulation No 1346/2000 was in force, even though the latter contains a presumption relating to the centre of main interests. That presumption is also set out in Article 3(1), second subparagraph, of Regulation 2015/848 alongside the other two presumptions relating to natural persons. Therefore, the legal force of that presumption — and of the two others provided for in Article 3(1) of Regulation 2015/848 — remains, in my view, unchanged with respect to the presumption in Article 3(1) of Regulation No 1346/2000.

41.      In that context, as regards the legal force of the presumption in Regulation No 1346/2000 in favour of a company’s registered office, the Court found, in Eurofood IFSC, (21) that that presumption can be rebutted only if factors which are both objective and ascertainable by third parties make it possible to establish that an actual situation exists which is different from that which locating it at that registered office is deemed to reflect. In that regard, the Court pointed out in that judgment that that presumption could be rebutted where the debtor does not carry out any business in the territory of the Member State in which its registered office is located, (22) and it held, in Interedil, (23) that it could also be rebutted where a company’s central administration is not in the same place as its registered office.

42.      I infer from this that, as regards Regulation 2015/848 and its presumptions, including that provided for in the fourth subparagraph of its Article 3(1), the presumed centre of main interests also provides the starting point for the examination carried out under Article 4(1) of that regulation. In the context of that examination, the court hearing a request for the opening of insolvency proceedings analyses all the relevant factors in order to satisfy itself that the presumption in favour of the place of habitual residence has not been rebutted. (24) That presumption may be rebutted only if those factors, determined on the basis of the criteria to be used in respect of a natural person not engaged in a self-employed activity, make it possible to establish that an actual situation exists which is different from that which locating it at the habitual residence is deemed to reflect.

43.      It is thus necessary to examine what the habitual residence is deemed to reflect as being the presumed centre of main interests, and then to identify the criteria which make it possible to establish that an actual situation exists which is different from that indicated by that examination.

C.      Application of the earlier case-law relating to Regulation No 1346/2000 as regards natural persons not engaged in a self-employed activity

1.      Habitual residence as the presumed centre of main interests

44.      The referring court states that the applicants are habitually resident in the United Kingdom. Without seeking to determine whether that corresponds to the concept of ‘habitual residence’ within the meaning of Article 3(1), fourth subparagraph, of Regulation 2015/848, I note that that regulation does not define that concept. Since there is nothing to indicate that the legislature intended to refer to national law in order to determine the place of habitual residence, the view must be taken that the concept of ‘habitual residence’ is an autonomous concept of EU law.

45.      It is true that that concept forms the subject matter of the Court’s case-law relating, in particular, to Regulation (EC) No 2201/2003, (25) which concerns the habitual residence of a child. However, the criteria used under that regulation to identify the place of habitual residence do not seem to me to be transposable to Regulation 2015/848 in order to determine the reasons why the place of habitual residence is presumed to be the centre of a debtor’s main interests. In this context, priority should be given not to factors relating to a debtor’s social or family situation (26) but to those relating to a debtor’s financial position. (27)

46.      Under Regulation 2015/848, the place of habitual residence constitutes the place where the centre of a debtor’s main interests is presumed to be located and must — perhaps most importantly — also fulfil the criteria set out in Article 3(1), first subparagraph, second sentence, of that regulation, that is to say, it must be the place where the debtor conducts the administration of its interests on a regular basis and must be ascertainable by third parties. A debtor’s social or family situation does not constitute a factor that is easily ascertainable by third parties. Admittedly, the same does not apply in the case of interpersonal relationships that have economic implications, such as a marital relationship or the relationship between members of the same family unit. Such relationships may affect a debtor’s situation in so far as concerns its assets and may, in particular, cause the debtor to enter into transactions with third parties. I am, however, of the opinion that such relationships must be taken into account not because of their subjective importance to a debtor, but because of their economic implications. In the context of determining which courts have jurisdiction on the basis of where the centre of main interests is located, the relationship between a parent company and its subsidiary is clearly distinct from that between persons who are related to one another. In the case of natural persons not engaged in a self-employed activity, the line separating their financial situation and their family situation is blurred, whereas for companies this issue does not arise.

47.      This interpretation is supported by a reading of the Report by M. Virgós and E. Schmit, (28) which is generally acknowledged to be a source of useful guidance for the interpretation of Regulation No 1346/2000 and, therefore, of Regulation 2015/848.

48.      In point 75 of that report, the authors explain, in terms similar to those used in recital 13 of Regulation No 1346/2000 and Article 3(1), first subparagraph, second sentence, of Regulation 2015/848, that the concept of ‘centre of main interests’ must be interpreted as designating the place where the debtor conducts the administration of its interests on a regular basis and is therefore ascertainable by third parties. Those authors add that, by using the term ‘interests’, the intention was to encompass not only commercial, industrial or professional activities, but also all general economic activities, so as to include the activities of private individuals, including those of consumers. Accordingly, even as regards natural persons not engaged in a self-employed activity (‘consumers’), no reference was made to interests other than economic interests. The centre of economic interests must be established primarily on the basis of factors relating to those interests.

49.      In the light of the foregoing, I consider that an actual situation exists which is different from that which locating it at the habitual residence is deemed to reflect where the habitual residence does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of its revenue is earned and spent, or as the place where the major part of its assets is located. It is in such circumstances that the presumption in Article 3(1), fourth subparagraph, of Regulation 2015/848 may be rebutted.

50.      In that context, it is for the referring court to verify whether the applicants’ sole immovable asset, which is situated in Portugal, constitutes the major part of their assets. If that is the case, the presumption in Article 3(1), fourth subparagraph, of Regulation 2015/848 may be capable of being rebutted and that court must determine whether that factor is sufficient to support the conclusion that the centre of the applicants’ main interests is located in that Member State.

51.      All that remains, therefore, is to identify the factors capable of rebutting that presumption in favour of the Member State in which a debtor’s sole immovable asset is located.

2.      The factors capable of rebutting the presumption

52.      By reference to the judgment in Interedil, (29) the Portuguese Government maintains that, in the case of natural persons, the centre of their main interests is the place where the major part of their assets is located or the place where the majority of their economic, social and family relationships are located, on the basis of a comprehensive assessment and taking into account the viewpoint of current or potential creditors. In the same vein, legal literature indicates that a court seised takes into account a number of criteria, such as whether there is a lease or property deed, the size of the residence, electricity consumption, everyday expenses, whether or not there are family members present locally, the employment contract, knowledge of the language and the location of the person’s assets and debts. (30)

53.      The foregoing considerations, relating to the factors that may be relevant to the examination carried out under Article 4(1) of Regulation 2015/848, require, in my view, some important clarification.

54.      In the first place, it is, admittedly, true that the EU legislature clarified the presumptions laid down in Article 3(1) of Regulation 2015/848, including that relating to natural persons not engaged in a self-employed activity, with the explanation provided in recital 30 of that regulation. That recital states, inter alia, that ‘in the case of [such] an individual …, it should be possible to rebut this presumption, for example where the major part of the debtor’s assets is located outside the Member State of the debtor’s habitual residence …’. (31) Referring to that passage, the applicants claim that, in the present case, it confers on the Portuguese courts’ jurisdiction to hear the action that they have brought.

55.      However, as stated by the Portuguese Government and the Commission, the situations referred to in that recital are only examples of the situations in which it ‘should be possible’ to rebut the presumption in Article 3(1), fourth subparagraph, of Regulation 2015/848. (32) By contrast, the mere fact that the circumstances mentioned in that recital obtain does not mean that the presumption is automatically rebutted in favour of a Member State. It follows that the location of the debtor’s assets constitutes one of the factors to be taken into account in the examination as to whether or not the presumption may be rebutted in favour of a Member State.

56.      The conclusion that a single asset is capable of shifting the centre of main interests would be contrary to one of the objectives of Regulation 2015/848, namely the objective of preventing ‘forum shopping’. In that context, moreover, it is necessary to consider the implications of the interpretation according to which the presumption in Article 3(1), fourth subparagraph, of Regulation 2015/848 should be rebutted in favour of the Member State within the territory of which the debtor’s sole immovable asset is located. The consequence of that interpretation would be that, where a person is habitually resident in one Member State, and is in paid employment in that Member State, but owns an immovable asset located in a third State, the courts of the Member States would not have jurisdiction to open insolvency proceedings. (33)

57.      In the second place, useful guidance may be gleaned from the wording of Article 3(1), first subparagraph, second sentence, of Regulation 2015/848, read in the light of the fourth subparagraph of that provision and taking account of the specific circumstances of the natural persons not engaged in a self-employed activity.

58.      First, it can be inferred from the fact that, in accordance with Article 3(1), first subparagraph, second sentence, of Regulation 2015/848, the centre of main interests corresponds to the place where the debtor conducts the administration of its interests on a regular basis, that that place must have a sufficient degree of stability. (34) As is clear from point 31 of this Opinion, it is necessary to establish that the place where the debtor conducts the administration of its interests is stable by reference to factors which are objective and ascertainable by third parties.

59.      Secondly, it also follows from the wording of Article 3(1), first subparagraph, second sentence, of Regulation 2015/848 that the place where the debtor conducts the administration of its interests on a regular basis must be ascertainable by third parties, which means, in turn, that it is the impression created by all those objective factors which is decisive in that context. (35)

60.      It is, admittedly, true that the term ‘third parties’ is an extremely broad concept. Recital 28 of Regulation 2015/848 clarifies that ‘when determining whether the centre of the debtor’s main interests is ascertainable by third parties, special consideration should be given to the creditors and to their perception as to where a debtor conducts the administration of its interests’. (36) Moreover, in its judgment in Interedil, (37) the Court stated that the requirement for objectivity and the possibility of ascertainment, to which recital 13 of Regulation No 1346/2000 referred, are met where the material factors taken into account in order to establish the place in which the debtor company conducts the administration of its interests on a regular basis have been made public or, at the very least, made sufficiently accessible to enable third parties, that is to say, in particular, the company’s creditors, to be aware of them.

61.      In that context, it should be noted that the question referred for a preliminary ruling, as formulated, refers only to the circumstance in which the debtor owns an immovable asset located in a Member State other than that in which he is habitually resident, where he is in paid employment. However, it is clear from the request for a preliminary ruling that, before the referring court, the applicants have also claimed, in particular, that it was in Portugal that they carried out all the transactions and entered into all the contracts which gave rise to their insolvency.

62.      That being the case, as far as natural persons not engaged in a self-employed activity are concerned, I think that the overall impression that creditors have previously had of a debtor’s situation should not be of decisive importance.

63.      Within the European Union, the mobility of those persons is key. It is always possible for their creditors to anticipate a shift of the centre of a debtor’s interests and, according to recital 27 of Regulation 2015/848, the centre of the debtor’s main interests or the debtor’s establishment must actually be located within the territorial jurisdiction of the court which has jurisdiction to hear the request for the opening of insolvency proceedings. Moreover, that regulation provides sufficient safeguards aimed at preventing fraudulent or abusive forum shopping. Consequently, without prejudice to the implementation of those safeguards, importance should be attached, above all, to the objective factors which are ascertainable by third parties (current and potential creditors) when such a request is made.

D.      Final considerations

64.      To summarise my analysis, the presumption in Article 3(1), fourth subparagraph, of Regulation 2015/848 may be rebutted if the place of habitual residence of a natural person not engaged in a self-employed activity does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of its revenue is earned and spent, or as the place where the major part of its assets is located. However, that presumption cannot be rebutted in favour of the State within the territory of which the sole immovable asset is located in the absence of any other indication that the centre of the debtor’s main interests is located in that Member State. That fact may be determined on the basis of objective factors which are ascertainable by third parties (current and potential creditors) and relate to the financial interests of that debtor.

V.      Conclusion

65.      For those reasons, I propose that the Court should answer the question referred for a preliminary ruling by the Tribunal da Relação de Guimarães (Court of Appeal, Guimarães, Portugal) as follows:

Article 3(1), first and fourth subparagraphs, of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption that the habitual residence of a debtor who is a natural person not engaged in a self-employed activity is the centre of his main interests may be rebutted if the place of habitual residence does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of his revenue is earned and spent, or as the place where the major part of his assets is located.

However, that presumption cannot be rebutted in favour of the Member State within the territory of which a debtor’s sole immovable asset is located in the absence of any other indication that the centre of that debtor’s main interests is located in that Member State. That fact may be determined on the basis of objective factors which are ascertainable by third parties (current and potential creditors) and relate to the financial interests of that debtor.


1      Original language: French.


2      Council regulation of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).


3      See judgments of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281); of 20 October 2011, Interedil (C‑396/09, EU:C:2011:671), and of 15 December 2011, Rastelli Davide and C. (C‑191/10, EU:C:2011:838).


4      Regulation of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19, and corrigendum OJ 2016 L 349, p. 9).


5      See, by way of example, judgments of 7 September 2017, Neto de Sousa (C‑506/16, EU:C:2017:642, paragraph 23), and of 26 October 2017, Aqua Pro (C‑407/16, EU:C:2017:817, paragraph 26).


6      See Article 3(1), first subparagraph, of Regulation 2015/848.


7      See Article 3(1), fourth subparagraph, of Regulation 2015/848.


8      Convention opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1).


9      See judgment of 16 January 2014 (C‑328/12, EU:C:2014:6, paragraph 21).


10      Consequently, the withdrawal of the United Kingdom from the European Union does not, in principle, prevent the Portuguese courts from hearing the applicants’ request.


11      Article 7(1) of Regulation 2015/848 provides that ‘save as otherwise provided in this Regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened’.


12      See judgments of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraph 31); of 20 October 2011, Interedil (C‑396/09, EU:C:2011:671, paragraph 43), and of 15 December 2011, Rastelli Davide and C. (C‑191/10, EU:C:2011:838, paragraph 31).


13      Regulation 2015/848 covers proceedings conducted for the purposes of a rescue, adjustment of debt or reorganisation, as well as pre-insolvency proceedings. See my Opinion in A (C‑716/17, EU:C:2019:262, point 25). See, also, Hess, B., Oberhammer, P., Bariatti, S., Koller, Ch., Laukemann, B., Requejo Isidro, M., Villata, F.C. (eds), The Implementation of the New Insolvency Regulation: Improving Cooperation and Mutual Trust, Nomos, Baden-Baden, 2017, p. 52; Sautonie-Laguionie, L., ‘L’extension du champ d’application du règlement (UE) 2015/848 par une définition vaste des “procédures d’insolvabilité”’, Le nouveau droit européen des faillites internationales, edited by Cotiga-Raccah, A., Sautonie-Laguionie, L., Bruylant, Brussels, 2018, p. 66 et seq.


14      Emphasis added.


15      See Andrianesis, A.P., ‘The Opening of Multijurisdictional Insolvencies Through the Prism of the Recast Regulation 848/2015’, European Company Law, 2017, vol. 14(1), p. 9; Mucciarelli, F.M., ‘Private International Law Rules in the Insolvency Regulation Recast: A Reform or a Restatement of the Status Quo?’, European Company Law, 2016, vol. 1, pp. 14 and 15, and Vallens, J.L., ‘Le règlement (UE) 2015/848 du 20 mai 2015: une avancée significative du droit européen de l’insolvabilité’, Revue Lamy Droit des Affaires, 2015, No 106, p. 18.


16      See judgments of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraph 33), and of 20 October 2011, Interedil (C‑396/09, EU:C:2011:671, paragraph 49). See, also, order of 24 May 2016, Leonmobili and Leone (C‑353/15, not published, EU:C:2016:374, paragraph 33and the case-law cited).


17      See, by analogy, judgment of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraph 33) which concerns Regulation No 1346/2000. The fundamental objective of conflict-of-law rules is to ensure that the law applicable to the assessment of the factual situation is predictable, even in the context of the application of the lex fori. See, inter alia, my Opinion in KP (C‑83/17, EU:C:2018:46, point 81).


18      It is common ground that the applicants have been habitually resident in the United Kingdom since 2016. Furthermore, as is clear from point 18 of this Opinion, in order for Regulation 2015/848 to be applicable in the main proceedings, the date of opening of the insolvency proceedings could not have been earlier than 26 June 2017. In any event, the wording used by the referring court in its question implies that that court has ruled out the possibility of disregarding the presumption in Article 3(1), fourth subparagraph, of that regulation, because the applicants’ habitual residence was moved within the six-month period.


19      Emphasis added.


20      See judgment of 2 May 2006 (C‑341/04, EU:C:2006:281, paragraph 41). As regards the implications of that interpretation, see Van Calster, G., European Private International Law, Hart Publishing, Oxford, Portland, 2016, p. 298.


21      See judgment of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraph 34).


22      See judgment of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraph 35).


23      Judgment of 20 October 2011, Interedil (C‑396/09, EU:C:2011:671, paragraph 51).


24      See, to that effect, Cuniberti, G., Nabet, P., Raimon, M,, Droit européen de l’insolvabilité. Règlement (UE) 2015/848 du 20 mai 2015 relatif aux procédures d’insolvabilité, LGDJ., Issy-les-Moulineaux, 2017, p. 116, paragraph 197.


25      Council regulation of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).


26      See, a contrario, judgment of 22 December 2010, Mercredi (C‑497/10 PPU, EU:C:2010:829, paragraphs 47 and 48).


27      See Jault-Seseke, F., ‘Le règlement 2015/848: le vin nouveau et les vieilles outres’, Revue critique de droit international privé, 2016, point 27.


28      Report by M. Virgós and E. Schmit on the Convention on insolvency proceedings of 3 May 1996 (Council of the European Union document no 6500/96, DRS 8 (CFC)). The definitive version of the full text in English appears in the work Moss, G., Fletcher, I.F., Isaacs, S., The EC Regulation on Insolvency proceedings. A Commentary and Annotated Guide, 2nd edition, Oxford University Press, Oxford, 2009, p. 381 et seq.


29      Judgment of 20 October 2011 (C‑396/09, EU:C:2011:671, paragraph 52).


30      See Cuniberti, G., Nabet, P., Raimon, M, op. cit., p. 76, paragraph 145.


31      Admittedly, recital 30 of Regulation 2015/848 mentions a second situation in which the presumption can be rebutted, namely where ‘it can be established that the principal reason for [the debtor’s] moving was to file for insolvency proceedings in the new jurisdiction and where such filing would materially impair the interests of creditors whose dealings with the debtor took place prior to the relocation’. However, it has not been alleged that the applicants moved their habitual residence with such an intention and, in any event, the referring court does not appear to consider that possibility.


32      See, also, point 49 of this Opinion.


33      See point 20 of this Opinion.


34      Fabriès-Lecéa, E., ‘Règlement (UE) 2015/848 du 20 mai 2015 relatif aux procédures d’insolvabilité. Commentaire article par article’, edited by Sautonie-Laguionie, L., Société de législation comparée, Paris, 2015, p. 61.


35      See, to that effect, as regards the fact that the centre of main interests must be ascertainable by third parties, Jault-Seseke, F., op. cit.


36      Emphasis added.


37      Judgment of 20 October 2011 (C‑396/09, EU:C:2011:671, paragraph 49).