Judgment of the Court of Appeal of Porto of February 15, 2016
Revitalisation Plan – Suspension of Proceedings – Pecuniary Obligation – Pension Supplement
In this judgment, it was understood that the suspension or termination of the proceedings provided for in paragraph 1 of article 17-E of the Insolvency and Corporate Recovery Code (“CIRE”) refer to the proceedings intended at demanding the compliance of pecuniary pro- visions, regardless of whether they are conviction or executive proceedings.
Therefore, such proceedings, when suspended or terminated, include the remuneration and compensation credits, arising from just cause employment contract resolutions, due prior to the order appointing the temporary judicial administrator in the Special Revitali- sation Proceedings (“PER”).
However, under this judgement, the retirement pension and medical supplements, which’s recognition is claimed in the conviction proceedings, are not subsumed within the proceed- ings provided for in paragraph 1 of article 17-E of the CIRE, since they are not, in the strict sense, pecuniary obligations.
In the present case, the plaintiff appealed the Court’s decision which, given the judicial approval and confirmation of the defendant’s recovery plan, terminated the proceedings brought by the plaintiff, against the defendant, requesting the recognition of the right to the payment of employment and compensations claims arising from the just cause em- ployment contract resolution.
Judgment of the Court of Appeal of Coimbra of February 16, 2016 Insolvency – Credit Claim – Joint Responsibility
The present judgement promotes de understanding that, in accordance with article 95, paragraph 2, of the Insolvency and Corporate Recovery Code (“CIRE”), only when a holder of a credit, with joint debtors or guarantees, does not claim the credit during the insolvency proceedings can the latter do so by claiming a credit derived from possible future payment of the debt on suspensive condition, with the condition of future payment by the debtor or guarantee.
Once the payment in the proceedings is verified, the joint debtor or guarantee assumes the position of the original creditor in relation to the respective payment made in accord- ance with paragraph 3 of article 47 of CIRE. However, one should emphasize that , if the joint debtor or guarantee only partially covers the debt, it may not obtain the payment in the respective insolvency proceedings while the credit holder is not fully satisfied.
In casu, since the creditor claimed the credit on the insolvent in the bankruptcy proceed- ings, the Court, therefore, confirmed the inability of the appellant (guarantor) to claim any eventual future credit resulting from the provided guarantee, even as conditional credit.