At the latest since the decision of Seagon v Deko Marty (12 February 2009, C-339/07), the European Court of Justice (ECJ) has extended the international jurisdiction of the court where the insolvency was opened through so-called 'annex competence' and insolvency-related 'ancillary claims and proceedings'. However, it has been argued (with reference to Article 1(2)(b) of the Brussels I Regulation and the exceptions for bankruptcies, settlements and similar proceedings set out therein) that the Brussels I Regulation does not actually cover such insolvency-related ancillary claims and proceedings. This view has caused a serious lack of clarity in this regard as according to the European legislature, the Brussels I Regulation and the European Insolvency Regulation are meant to work together seamlessly.
The question of when annex competence should be assumed has been addressed in greater detail in a number of ECJ decisions. According to the ECJ, the decisive factor is whether the action in question originates directly from the insolvency proceedings (immediacy) and whether it is closely connected to those proceedings (close connection) (see Deko Marty at para 19; F-Tex (C-213/10) at para 29; and Nickel & Goeldner Spediton (C-151/13) at para 23). For example, this applies to insolvency clawback claims. Further, annex competence is often established by legal actions relating to rights of separation and segregation, as well as insolvency-related liability claims against managing directors.
Considering the lack of clarity regarding the criteria of immediacy and close connection (as developed in ECJ case law), as well as the requirement for their strict autonomous interpretation, it is often unclear which further claims and proceedings justify annex competence.
Nevertheless, during the reform of the European Insolvency Regulation – the new version of which has been in force since 26 June 2017 – the European legislature decided in favour of a codification of the ECJ's case law principles. Clawback claims are now specifically addressed in Article 6(1) of the new European Insolvency Regulation.
The ECJ judgment below was originally written with reference to the European Insolvency Regulation in its old form. However, it may still be used for interpreting Article 6(1) of the new European Insolvency Regulation and is therefore worth examining.
VAV invest, a company incorporated under Slovakian law, was the subject of restructuring proceedings in Slovakia for which a committee consisting of three different creditors was established. During these proceedings, a restructuring plan (prepared by VAV) was rejected by the creditors' committee, which ultimately led to the failure of the restructuring process and the liquidation of VAV in subsequent regular insolvency proceedings.
Two VAV shareholders and other parties with which VAV had contractual relations subsequently brought an action for damages against the three creditors' committee members before the Krems an der Donau Regional Court (Austria). The plaintiffs, among other things, accused the defendants of breaching their general duty of prevention and obligations under Slovakian bankruptcy law since they did not act in the interest of all creditors. They argued that the rejection of the restructuring plan resulted in a reduction of the share value and delays (and in some cases failures) in the construction projects. Consequently, the shareholders and contractual partners suffered a loss. Due to the breach of their legal obligations as members of the creditors' committee, the defendants were liable for the damages.
Without reviewing the case, the Krems an der Donau Regional Court dismissed the claim due to a lack of international jurisdiction. The court held that the claim for damages was covered by the exceptions set out in Article 1(2)(b) of the Brussels I Regulation. Therefore, the court in which insolvency proceedings were opened (ie, the Slovakian Insolvency Court) had international jurisdiction regarding this claim.
The appeal filed by the plaintiffs against the regional court's decision was also unsuccessful. The Austrian Supreme Court suspended the proceedings and referred the question of international jurisdiction to the ECJ for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union.
In agreement with the Krems an der Donau Regional Court, the ECJ concluded that the claim for damages fell within the scope of Article 1(2)(b) of the Brussels I Regulation. Therefore, the European Insolvency Regulation applied and the Slovakian Bankruptcy Court had jurisdiction regarding the claim for damages.
Referring to a judgment of 9 November 2017 (Tünkers France and Tünkers Maschinenbau (C-641/16)), the ECJ reaffirmed its case law regarding the interaction and completeness of the Brussels I Regulation and the European Insolvency Regulation. The court then referred to the criteria that had been developed (namely, immediacy and close connection) for the classification of claims under the scope exception set out in Article 1(2)(b) of the Brussels I Regulation, which was then applied to the case at hand.
With regard to the criterion of immediacy, the ECJ first elaborated on the actual origin and cause of the claim for damages. The court highlighted that the underlying legal action concerned only the defendants' voting behaviour in their capacity as creditors' committee members. Therefore, the defendants exercised a function that originated from the special regulations for insolvency proceedings. The claim for damages was therefore an immediate and inseparable consequence of the existing restructuring proceedings. The action at hand found its legal grounding in the special rules of national insolvency law, through which it had satisfied the criterion of immediacy.
Finally, the ECJ confirmed the existence of a close connection. The question of liability depended (in particular) on the extent of creditors' committee member obligations. These were determined by the insolvency proceedings and their development.
The ECJ's decision is convincing. It clarifies that creditors' committee member activities are inseparably linked with insolvency proceedings and their effects. Although the case at hand viewed the creditors' committee as compulsory, the same should also apply to members of a voluntary creditors' committee. While the Austrian Supreme Court – in consideration of Slovakian law – had classified the damage claims as tortious, the ECJ's decision also applies to the voting behaviour of a creditors' committee in insolvency proceedings in other jurisdictions.
Overall, the decision confirms the existing legal situation. The ECJ took the opportunity to reaffirm its established case law and held that even when considering Article 6(1) of the new European Insolvency Regulation, the existing case law need not be reviewed in future.
Further, Article 6(1) of the new European Insolvency Regulation governs only matters of an international jurisdiction. Therefore, situations may arise where national courts have international jurisdictions, but national regulations regarding territorial jurisdiction are missing.
For further information on this topic please contact Stefan Sax or Martin Jawansky at Clifford Chance LLP by telephone (+49 69 7199 01) or email (email@example.com or firstname.lastname@example.org). The Clifford Chance website can be accessed at www.cliffordchance.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.