Yesterday (18 April 2024) the Court of Justice – asked by the Commercial Court No 1, Palma de Mallorca, Spain (Juzgado de lo Mercantil No 1 de Palma de Mallorca) to interpret Arts 3(2), 7(1), 7(2)(g) and (h), 21(1) and (2), 34, and 35, read in conjunction with Recital No 72 of Regulation (EU) 2015/848 – delivered its judgment on the joined cases No C-765/22 and C-772/22, Luis Carlos and Others v. Air Berlín Luftverkehrs KG, Sucursal en España and Air Berlín PLC & CO Luftverkehrs KG.
The requests have been made in two sets of proceedings between (i) Luis Carlos and others, on the one hand, and Air Berlin Luftverkehrs KG, Sucursal en España, on the other, concerning a challenge to the inventory of assets and the list of creditors established by the insolvency practitioner in secondary insolvency proceedings opened in Spain in respect of Air Berlin Spain (case C‑765/22) and (ii) Victoriano and others, on the one hand, and Air Berlin Spain and Air Berlin PLC & Co. Luftverkehrs KG, on the other, concerning a challenge to an act by which assets were removed from the territory of Spain (case C‑772/22).
The referring Court asked several questions to the Court of Justice. In a nutshell, those questions regarded: (i) whether 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; (ii) how to determine the assets that comprise the insolvency estate in secondary insolvency proceedings and, more specifically, the time parameter that must be taken into account to determine the assets and rights that form part of that estate; (iii) under which conditions the act of removing assets from the territory in which the establishment is situated may be unlawful and abusive; and (iv) the right of creditors to bring actions to set aside against the acts performed by the insolvency practitioner in the main insolvency proceedings.
In the decision, the Court of Justice stated that: (i) Arts 7 and 35 Regulation No 2015/848 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”; (ii) Arts 3(2) and 34 of the Regulation 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”; (iii) Art 21(1) of the Regulation 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”; and (iv) Art 21(2) of the Regulation 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”.
On cross-border insolvency, the readers of RDIPP may refer to:
Stefania Bariatti, 2022, No 1, 5 ff.; Antonio Leandro, 2014, No 2, 317 ff.; Massimo V. Benedettelli, 2004, No 2, 499 ff.; Patrizia De Cesari, 2003, No 1, 55 ff.; Luigi Daniele, 2002, No 1, 33 ff.; Claudio Dordi, 1997, No 2, 333 ff.
Moreover, see, in our Book Series:
Angela Lupone, Book No 44.