Galapagos BidCo. S.a.r.l. v DE, en tant que liquidateur de Galapagos S.A. and Others.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:209
• Docket Number: C-723/20
• Date: 24 March 2022
• Celex Number: 62020CJ0723
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

24 March 2022 (*)

(Reference for a preliminary ruling – Regulation (EU) 2015/848 – Insolvency proceedings – Article 3(1) – International jurisdiction – Moving of the centre of a debtor’s main interests to another Member State after a request to open main insolvency proceedings has been lodged)

In Case C‑723/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 17 December 2020, received at the Court on 29 December 2020, in the proceedings

Galapagos BidCo. Sàrl

v

DE, in its capacity as liquidator of Galapagos SA,

Hauck Aufhäuser Fund Services SA,

Prime Capital SA,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, I. Jarukaitis (Rapporteur), M. Ilešič, D. Gratsias and Z. Csehi, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Galapagos BidCo. Sàrl, by W. Nassall, Rechtsanwalt,

– DE, acting as liquidator of Galapagos SA, by C. van de Sande, Rechtsanwalt,

– Hauck Aufhäuser Fund Services SA and Prime Capital SA, by R. Hall, Rechtsanwalt,

– the German Government, by J. Möller, M. Hellmann and U. Bartl, acting as Agents,

– the European Commission, by S. Grünheid and S. Noë, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19).

2 The request has been made in proceedings between Galapagos BidCo. Sàrl, on the one hand, and DE, in its capacity as liquidator of Galapagos SA, Hauck Aufhäuser Fund Services SA and Prime Capital SA, on the other, concerning a request to open insolvency proceedings in respect of Galapagos in Germany.

Legal context

European Union law

The Withdrawal Agreement

3 Article 67(3) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7; ‘the Withdrawal Agreement’) provides:

‘In the United Kingdom [of Great Britain and Northern Ireland], as well as in the Member States in situations involving the United Kingdom, the following provisions shall apply as follows:

…

(c) [Regulation 2015/848] shall apply to insolvency proceedings, and actions referred to in Article 6(1) of that Regulation, provided that the main proceedings were opened before the end of the transition period;

…’

4 Article 126 of the Withdrawal Agreement provides:

‘There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.’

Regulation (EC) No 1346/2000

5 Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1), which was repealed by Regulation 2015/848, provided:

‘The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. 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.’

Regulation 2015/848

6 Recitals 1, 3, 5, 8, 23, 27, 29, 33 and 65 of Regulation 2015/848 state:

‘(1) On 12 December 2012, the [European] Commission adopted a report on the application of [Regulation No 1346/2000]. The report concluded that the Regulation is functioning well in general but that it would be desirable to improve the application of certain of its provisions in order to enhance the effective administration of cross-border insolvency proceedings. Since that Regulation has been amended several times and further amendments are to be made, it should be recast in the interest of clarity.

…

(3) The proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently and effectively. …

…

(5) It is necessary for the proper functioning of the internal market 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).

…

(8) In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects, it is necessary, and appropriate, that the provisions on jurisdiction, recognition and applicable law in this area should be contained in a Union measure which is binding and directly applicable in Member States.

…

(23) This Regulation enables the main insolvency proceedings to be opened in the Member State where the debtor has the centre of its main interests. Those proceedings have universal scope and are aimed at encompassing all the debtor’s assets. …

…

(27) 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.

…

(29) This Regulation should contain a number of safeguards aimed at preventing fraudulent or abusive forum shopping.

…

(33) In the event that the court seised of the request to open insolvency proceedings finds that the centre of main interests is not located on its territory, it should not open main insolvency proceedings.

…

(65) This Regulation should provide for the immediate recognition of judgments concerning the opening, conduct and closure of insolvency proceedings which fall within its scope, and of judgments handed down in direct connection with such insolvency proceedings. Automatic recognition should therefore mean that the effects attributed to the proceedings by the law of the Member State in which the proceedings were opened extend to all other Member States. The recognition of judgments delivered by the courts of the Member States should be based on the principle of mutual trust. To that end, grounds for non-recognition should be reduced to the minimum necessary. This is also the basis on which any dispute should be resolved where the courts of two Member States both claim competence to open the main insolvency proceedings. The decision of the first court to open proceedings should be recognised in the other Member States without those Member States having the power to scrutinise that court’s decision.’

7 According to Article 2(7) of that regulation, for the purposes of that regulation, the ‘judgment opening insolvency proceedings’ means a judgment which includes the decision of any court to open insolvency proceedings or to confirm the opening of such proceedings and the decision of a court to appoint an insolvency practitioner.

8 Article 3 of Regulation No 1346/2000, headed ‘International jurisdiction’, provides:

‘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. …

2. Where the centre of the debtor’s main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if it possesses an establishment within the territory of that other Member State. The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.

3. Where insolvency proceedings have been opened in accordance with paragraph 1, any proceedings opened subsequently in accordance with paragraph 2 shall be secondary insolvency proceedings.

…’

9 Article 4 of that regulation, headed ‘Examination as to jurisdiction’, provides, in paragraph 1:

‘A court seised of a request to open insolvency proceedings shall of its own motion examine whether it has jurisdiction pursuant to Article 3. The judgment opening...