interedill2ECJ2011
ECJ Reference for a preliminary ruling – Whether a lower court has the power to refer a question to the Court for a preliminary ruling – Regulation (EC) No 1346/2000 – Insolvency proceedings – International jurisdiction – The centre of a debtor’s main interests – Transfer of a registered office to another Member State – Concept of establishment
‘By the second part of Question 3, the Tribunale di Bari asks, in essence, how the term ‘establishment’ within the meaning of Article 3(2) of the Regulation must be interpreted.
Article 2(h) of the Regulation defines the term ‘establishment’ as designating any place of operations where the debtor carries out a non-transitory economic activity with human means and goods.
The fact that that definition links the pursuit of an economic activity to the presence of human resources shows that a minimum level of organisation and a degree of stability are required. It follows that, conversely, the presence alone of goods in isolation or bank accounts does not, in principle, satisfy the requirements for classification as an ‘establishment’.
Since, in accordance with Article 3(2) of the Regulation, the presence of an establishment in the territory of a Member State confers jurisdiction on the courts of that State to open secondary insolvency proceedings against the debtor, it must be concluded that, in order to ensure legal certainty and foreseeability concerning the determination of the courts with jurisdiction, the existence of an establishment must be determined, in the same way as the location of the centre of main interests, on the basis of objective factors which are ascertainable by third parties.
The answer to the second part of Question 3 is therefore that the term ‘establishment’ within the meaning of Article 3(2) of the Regulation must be interpreted as requiring the presence of a structure consisting of a minimum level of organisation and a degree of stability necessary for the purpose of pursuing an economic activity. The presence alone of goods in isolation or bank accounts does not, in principle, meet that definition.’
Judges:
President of Chamber A Tizzano
Citations:
[2011] EUECJ C-396/09, [2011] WLR (D) 334, [2012] BCC 851, [2012] Bus LR 1582, [2011] ECR I-9915, [2011] BPIR 1639
Links:
Statutes:
Citing:
Opinion – Interedil ECJ 10-Mar-2011
ECJ Opinin – Preliminary ruling – Regulation (EC) No 1346/2000 – Insolvency proceedings – International jurisdiction – Article 3, paragraph 1 of Regulation No. 1346/2000 – Centre of main interests of the debtor – . .
Cited by:
Cited – Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa ChD 29-May-2012
Olympic Airlines, incorporated in Greece, but with headquarters in London, went into liquidation. The pensions scheme had been run with a deficit. The trustees no sought the winding up of the company under British law.
Held: To be an . .
Cited – Olympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
Cited – Olympic Airlines Sa Pension and Life Assurance Scheme, The Trustees of The v Olympic Airlines Sa SC 29-Apr-2015
The airline was incorporated in Greece but with an office in the UK. It became insolvent leaving a deficit in the UK employee pension scheme. The trustees of the fund sought a secondary insolvency within the UK, and now a reference to the European . .
Lists of cited by and citing cases may be incomplete.
European, Insolvency
Updated: 04 October 2022; Ref: scu.451141