Opinion of Advocate General Medina delivered on 18 April 2024.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2024:330
• Date: 18 April 2024

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 18 April 2024 (1)

Case C‑394/22

Oilchart International NV

v

O.W. Bunker (Netherlands) BV,

ING Bank NV

(Request for a preliminary ruling from the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction – Regulation (EU) No 1215/2012 – Article 1(1) and (2)(b) – Concept of ‘civil and commercial matters’ – Matters excluded – Bankruptcy and proceedings relating to the winding-up of insolvent companies or other legal persons – Regulation (EC) No 1346/2000 – Article 3(1) – Actions deriving directly from insolvency proceedings and closely connected with them)

1. Oilchart International NV (‘Oilchart’) is a Belgian company which is seeking the recovery of an unpaid invoice for the bunkering of an ocean-going vessel in the port of Sluiskil (the Netherlands). That invoice had been left unpaid when the debtor, O.W. Bunker BV NL (‘OWB NL’), a Netherlands company, became insolvent. The action in the main proceedings was brought in Belgium following the opening of the insolvency proceedings in the Netherlands.

2. This situation raises the question whether the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), a court which is not presiding over the insolvency proceedings, can have jurisdiction over the action by which Oilchart is seeking the recovery of that invoice.

3. The case gives the Court of Justice another opportunity to refine its case-law on the demarcation between the respective scopes of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2) (‘the Brussels Ia Regulation’), (3) on the one hand, and of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (4) (‘the Insolvency Regulation’), (5) on the other.

4. For the purposes of deciding on the issue of international jurisdiction, the referring court has essentially asked the Court whether the action brought by the creditor before a national court – different from the one that is seised with the insolvency proceedings – for an invoice that has been filed for verification with the insolvency liquidator falls within the scope of the Insolvency Regulation or within that of the Brussels Ia Regulation.

I. Legal framework

A. European Union law

1. Brussels Ia Regulation

5. Article 1(1) and Article 1(2)(b) of the Brussels Ia Regulation provides:

‘1. This regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. …

2. This regulation shall not apply to:

…

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

…’

2. The Insolvency Regulation

6. Article 3(1) of the Insolvency Regulation is worded as follows:

‘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.’

B. Netherlands law

7. Article 25 of the Wet van 30 September 1893 op het faillissement en de surséance van betaling, (Law of 30 September 1893 on insolvency and the suspension of payments), the ‘Nederlandse Faillissementswet’ (‘the NFW’) reads as follows:

‘1. Legal actions concerning rights or obligations belonging to the insolvency estate shall be exercised against, as well as by, the liquidator.

2. If such legal actions are exercised or continued by or against the bankrupt debtor and they lead to a judgment against that bankrupt debtor, then this judgment shall have no legal force against the liquidation estate.’

8. Article 26 of the NFW states that:

‘Legal actions seeking of the performance of an obligation from the liquidation estate cannot be brought against the bankrupt person in any way other than that provided for in Article 110.’

9. Under Article 110(1) of the NFW, ‘claims shall be submitted to the liquidator in the form of an invoice or other written statement indicating the nature and amount of the claim, together with supporting documents or a copy thereof, and a statement as to whether or not a right of preference, pledge, mortgage or right of retention is claimed.’

II. The main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

10. On 21 October 2014, Oilchart supplied fuel bunkers, in the port of Sluiskil (Netherlands), to the seagoing vessel MS Evita K, owned by Sharsburg Navigation SA. The owner of that vessel had ordered the bunkers, via its agent Orient Shipping Rotterdam, from the Danish company OW Bunker & Trading A/S (‘OWB A/S’), which then forwarded that order to OWB NL, an undertaking which belonged to the same group. OWB NL in turn purchased the bunkers from Oilchart.

11. On 21 October 2014, OWB A/S issued an invoice to Orient Shipping Rotterdam in the amount of 117 179 United States dollars (USD).

12. On 22 October 2014, Oilchart issued an invoice to OWB NL for the supply of the bunker in the amount of USD 116 471.45 (‘the invoice at issue’). The rechtbank te Rotterdam (District Court, Rotterdam, Netherlands) declared OWB NL bankrupt on 21 November 2014. As a result, the invoice at issue remained unpaid. Oilchart filed its claim with respect to that invoice for verification by OWB NL’s liquidators.

13. Following the bankruptcy of OWB NL, Oilchart was faced with a series of unpaid invoices that had been issued to OWB NL (the invoice at issue among them) and, as a precautionary measure, had certain seagoing vessels to which it had supplied bunkers arrested. In order to release the vessels, the ship-owners or the mutual insurance associations (‘the P&I clubs’) issued guarantees to Oilchart for the amount of the invoices that it had issued to OWB NL. According to those guarantees, they could be invoked on the basis of a court ruling or an arbitral award handed down in Belgium against either OWB NL or the ship-owner.

14. On 11 March 2015, Oilchart brought an action before the rechtbank van koophandel te Antwerpen (Commercial Court, Antwerp, Belgium) against OWB NL. ING Bank NV (‘ING’), as a creditor of OWB NL, (6) intervened voluntarily in those proceedings. In its application, Oilchart presented its claim as a commercial claim to seek recovery of an unpaid invoice. It also made an incidental claim against ING, which in turn made a counter-claim. By judgment of 15 March 2017, the rechtbank van koophandel held that it had jurisdiction to rule on Oilchart’s action, but declared the claim for payment inadmissible on the ground that, under the NFW, Oilchart could only submit a claim with respect to debts to the liquidator of the insolvency proceedings.

15. On 16 May 2017, Oilchart brought an appeal against that decision before the referring court, the hof van beroep te Antwerpen (Court of Appeal, Antwerp). That court considered itself obliged to examine its international jurisdiction, in accordance with Article 28(1) of the Brussels Ia Regulation. (7)

16. In that context, the referring court, citing the case-law of the Court, expresses doubts as to whether it is necessary to determine whether the action brought by Oilchart against OWB NL is based on the ordinary rules of civil and commercial law within the meaning of Article 1(1) of the Brussels Ia Regulation or whether it is subject to the rules specific to insolvency proceedings. In addition, that court questions whether Article 3(1) of the Insolvency Regulation precludes a provision of national law which allows a creditor to bring, in one Member State, a legal action for payment on behalf of a claim in respect of which it has already made a declaration in the insolvency estate in another Member State.

17. The referring court takes the view that the exact nature of the action and of the possibility of bringing such an action against the insolvent company can be assessed only by applying the derogating rules specific to insolvency proceedings. However, that court considers that the determination of international jurisdiction should precede the application of the specific derogating rules of Netherlands insolvency law and not be made by the application of those rules.

18. In those circumstances, the hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(a) Must Article 1(2)(b) of the Brussels Ia Regulation … in conjunction with Article 3(1) of the Insolvency Regulation … be interpreted as meaning that the term “bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings” in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of [the NFW] and whereby:

– it must be determined whether such a claim must be considered a verifiable claim (Article 26 of the NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) of the NFW),

– it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to...