February 7th, 2019
Published on November 22nd, 2018 | by efi kloyeri0
Summary: C-250/17 regarding the Effects of insolvency proceedings on lawsuits pending concerning an asset or a right of which the debtor has been divested
Key-words:«Judicial cooperation in civil matters-Insolvency proceedings- Regulation (EC) No 1346/2000-Article 15-Effects of insolvency proceedings on lawsuits pending concerning an asset or a right of which the debtor has been divested-Concept of ‘lawsuit pending’-Substantive proceedings for the recognition of the existence of a debt»
A) The facts in the main proceedings and the question referred
Mr Tarragó da Silveira, residing in London brought before the Tribunal de Comarca de Lisboa (District Court of Lisbon, Portugal) ον 2008, a debt recovery action, based on a contract for the provision of services, against Espírito Santo Financial Group, with its seat in Luxembourg. Οn 10 October 2014, Espírito Santo Financial Group was declared insolvent by the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg). From that date, it was therefore the insolvency estate of Espírito Santo Financial Group, represented by the Luxembourgish administrator appointed by that court, which became the defendant in the proceedings.
Τhe Tribunal de Comarca de Lisboa (District Court of Lisbon) ruled that there was no need to adjudicate, holding that Article 15 of Regulation No 1346/2000 applied in this case, in view of the opening of insolvency proceedings in Luxembourg. Mr Tarragó da Silveira lodged two appeals against that judgment before the Supremo Tribunal de Justiça (Supreme Court). In support of his appeal, he submits that Article 15 of Regulation No 1346/2000 only applies to lawsuits pending concerning a specific asset or right and that lawsuits concerning an obligation of a monetary nature do not fall within the scope of that regulation. Accordingly, in this case, the effects of the insolvency proceedings opened in Luxembourg on the ongoing proceedings before the Portuguese courts should be governed, in accordance with the general rule on conflict of laws under Article 4 of that regulation, by the law of the Member State where those proceedings were initiated, in this case the Grand Duchy of Luxembourg. In contrast to Portuguese law, Luxembourgish law does not provide for the termination of lawsuits pending.
Β) Legal Context
Article 15 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings
C) Consideration of the question referred
«Article 15 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as applying to a lawsuit pending before a court of a Member State seeking an order that a debtor pay a sum of money due under a contract for the provision of services and pay monetary damages for failure to comply with that contractual obligation, in the event that (i) the debtor was declared insolvent in insolvency proceedings opened in another Member State; and (ii) the declaration of insolvency applies to all of the debtor’s assets».
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