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 ‘establishment within the UK. On its winding up, the company had a considerable shortfall in the pensions scheme.
Held: The airline did not have an establishment within the meaning of the Regulation as at 20 July 2010, and the subsequent winding-up of the airline in England, even if relevant at all, did not amount to ‘economic activity’ within the definition.
The Chancellor, had erred in overlooking the Virgos-Schmit report as an authoritative commentary on the Regulation, but also in failing to take into account that the Regulation is concerned with insolvency proceedings of all kinds: ‘ the definition of ‘establishment’ applies to secondary insolvency proceedings of any kind, even though secondary proceedings which follow the opening of main proceedings must be winding-up proceedings . . However, secondary proceedings which precede the opening of main proceedings need not be winding-up proceedings. It follows that secondary proceedings may involve forms of insolvency proceedings under which the debtor company may well seek to trade out of its difficulties. In such cases it simply is not true that the Regulation contemplates that a debtor company in secondary proceedings cannot be a trading company with outward facing market activity. ‘

Moore-Bick LJ, Sir Stephen Sedley, Sir Nernard Rix
[2013] EWCA Civ 643, [2013] Pens LR 281, [2013] WLR(D) 227, [2013] BCC 728, [2013] 2 BCLC 171, [2014] 1 WLR 1401, [2013] BPIR 663
Bailii, WLRD
Council Regulation (EC) 1346/2000
England and Wales
Appeal fromOlympic 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 . .
CitedShierson v Vlieland-Boddy CA 27-Jul-2005
The debtor claimed that he could not be served with an insolvency petition, being resident in Spain.
Held: The court was to look to where was the centre of his main interests to determine whether to open insolvency proceedings. On that basis, . .
Security for costsTrustees of Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa CA 25-Feb-2013
Application for security for costs of appeal agaiinst winding up order. . .
CitedIn re Stanford International Bank Ltd and Others ChD 3-Jul-2009
Sir Andrew Morritt explained the relationship of the Regulation, the Model Law, and the still earlier European Convention on Insolvency Proceedings: ‘To understand the arguments and explain my conclusion it is necessary to consider the evolution of . .
CitedTrillium (Nelson) Properties Ltd v Office Metro Ltd ChD 9-May-2012
Winding-up petition in which the principal issue is whether or not Office Metro Limited can be wound up in this jurisdiction in the light of the fact that, despite its being an English registered company, its centre of main interest is in . .
CitedInteredil Srl, in liquidation v Fallimento Interedil Srl, Intesa Gestione Crediti SpA ECJ 20-Oct-2011
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 . .
CitedEurofood IFSC (Area Of Freedom, Security and Justice) ECJ 2-May-2006
ECJ Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Decision to open the proceedings – Centre of the debtor’s main interests – Recognition of insolvency proceedings . .

Cited by:
Appeal fromOlympic 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.

Insolvency, European

Updated: 31 October 2021; Ref: scu.510183