Agrégateur de flux

This post has been some time in the making, notwithstanding my promise to have it up soon. Let’s just say I got distracted. The wide interest in Lutz, Case C-557/13, illustrates the increasing relevance of the actio pauliana in protecting creditors from their debtor’s insolvency. The core underlying issue for Lutz is that, in the absence of considerable capital in companies (arguably a direct result indeed of the regulatory competition in Member States’ corporate law following the ECJ’s case-law on freedom of establishment), civil law mechanisms have become more relevant than classic recourse to companies’ liability. If one relies on more classic modes of securitisation, one may want to have more predictability in what law will apply to those securitised agreements. That is where the Insolvency Regulation comes in, in providing for a mechanism which allows parties to indeed give parties the freedom to choose applicable law for the relevant agreements. Article 4(2)m of the Insolvency Regulation (in the new Regulation this is Article 7(m) – unchanged) makes the lex concursus applicable in principle: lex concursus applies to ‘(m) the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors.’ However Article 13 (16 new – unchanged) insulates a set of agreements from the pauliana: ‘Article 4(2)(m) shall not apply where the person who benefited from an act detrimental to all the creditors provides proof that: – the said act is subject to the law of a Member State other than that of the State of the opening of proceedings, and – that law does not allow any means of challenging that act in the relevant case.’  The crucial consideration in Lutz was whether the absence of means of challenge in the lex causae, relates to substantive law only, or also to procedural law. Randi summarise the time-line and relevant distinction in German and Austrian law as follows:

• “17 Mar 2008-Austrian court issues an enforceable payment order in favour of Mr Lutz against the debtor company
• 18 April 2008-debtor files application for German insolvency proceedings
• 20 May 2008-attachment of three Austrian bank accounts of the company
• 4 August 2008-German insolvency proceedings opened (as main proceedings) in respect of the company
• 17 Mar 2009-Austrian bank pays monies to Mr Lutz

Under German law, any enforcement of security over the debtor’s assets during the month preceding the lodging of the application to open proceedings is legally invalid once proceedings are opened. Under Austrian law, an action to set aside a transaction must be brought within one year after the opening of proceedings, failing which it becomes time-barred. By contrast, the limitation period under German law is three years. Although the attachment order was granted before the application to open main proceedings was filed, the actual attachment itself took place after that filing and the subsequent payment of monies by the bank took place after main proceedings were opened in Germany. Mr Lutz argued that art 13 applied and that the payment could no longer be challenged by the German liquidator under Austrian law as the one-year limitation period had expired.” (Randi also have good review of the questions in Lutz relating to rights in rem and Article 5, triggered in the case at issue by the attachments of bank accounts). Essentially, the Court expresses sympathy for the cover of procedural limits to fighting detrimental acts to be determined by the lex causae. (It dismissed any relevance of Article 12(1)d of Rome I Regulation, which provides that prescription and limitation of actions are governed by ‘the law applicable to a contract’: for the Insolvency Regulation is most definitely lex specialis). However leaving the matter up to the lex causae would cause differentiated application of the Insolvency Regulation across the Member States. Consequently the ECJ opts for autonomous interpretation, ruling (at 49) that Article 13 of Regulation No 1346/2000 must be interpreted as meaning that the defence which it establishes also applies to limitation periods or other time-bars relating to actions to set aside transactions under the lex causae.’ The ECJ’s judgment essentially confirms the EFTA Court’s views on the similar proviso in Directive 2001/24 on the winding-up of credit institutions (Lbi hf v Merrill Lynch). A pity the ECJ did not refer to that finding. Geert.

It has already been announced on this blog that the Academy of European Law (ERA) will host an international, English-language conference on recent experience and current trends in international commercial litigation, with a special focus on European private international law (see our earlier post here). The event will take place in Trier (Germany), on 8-9 October 2015. A slightly revised programme has now been put online and is available here. Registration is still possible here – so don’t miss the early bird rebate (before 8 September 2015)!

Professor Dr. Stefan Arnold (University of Graz, Austria) is organising a workshop on general principles of European private international law in Munich on 18 September 2015. Renowned speakers will deal with pervasive problems such as the notion of a family in PIL, the applicability of religious law, general principles of attachment, party autonomy, renvoi and public policy. The programme may be downloaded here. The conference will be held in German at the Bavarian Academy of Sciences. Participation is free of charge, but prior registration is required here.

La mise en œuvre d’une expropriation entraînant la dépréciation de la valeur vénale d’un bien ne donne pas lieu au versement d’indemnités compensatoires et ne viole pas le droit de la protection de la propriété prévu à l’article 1 du protocole 1 additionnel à la Convention européenne des droits de l’homme.

En carrousel matière:  Oui Matières OASIS:  Néant

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Cet arrêt rappelle d’abord que la responsabilité du commissionnaire de transport suppose que celui-ci ait commis une faute personnelle. Puis, faisant application de la Convention de Montréal du 28 mai 1999, il apporte plusieurs précisions sur le régime de responsabilité du transporteur aérien de marchandises.

En carrousel matière:  Oui Matières OASIS:  Commissionnaire de transport

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Doit être cassé l’arrêt qui, pour déclarer un appel tardif, retient qu’un jugement avait été valablement notifié par la remise de l’acte entre les mains de la fille du destinataire. De tels motifs sont inopérants au regard des dispositions du code de procédure civile propres aux notifications internationales

En carrousel matière:  Non Matières OASIS:  Charte des droits fondamentaux de l'Union européenne Convention européenne des droits de l'Homme

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Pourvoi c/ Cour d'appel de Nancy, Chambre de l'instruction, 27 janvier 2015

Pourvoi c/ Cour d'appel de Versailles, Chambre de l'instruction, 2 avril 2015

Pourvoi c/ Cour d'appel de Paris, 26 février 2015

Professors Anatol Dutta (University of Regensburg), Tobias Helms (University of Marburg) and Walter Pintens (University of Leuven) are organising a conference on a draft for a European regulation on the law applicable to names in Marburg (Germany) on Friday, 27 November 2015; for the programme, further information and registration, see here. The background of this event lies in the fact that, in spite of the far-reaching Europeanization of private international law, common conflicts rules on this matter are currently lacking. As a consequence, natural persons moving from one Member State to another may suffer from a non-recognition of a name that they have acquired abroad. In order to cure those “limping” legal relationships, a Working Group was convened by the Federal Association of German Civil Status Registrars in order to elaborate a proposal for a European Regulation. The resulting proposal has been published in English in the Yearbook of Private International Law XV (2013/14), pp. 31-37 and in French in the Revue critique de droit international privé 2014, pp. 733 et seq. The aim of the upcoming conference is to present and analyse the Working Group’s proposal and to trigger further academic discussion on the subject. The conference language will be German. Participation is free of charge, but registration is required before or on 31 October 2015 at the latest.

I need to give a bit of a factual background before I can get to the implications of the ECJ’s (or CJEU, I still haven’t decided) finding in C-469/13 Nortel.

Nortel Networks SA is established in Yvelines (France). The Nortel group was a provider of technical solutions for telecommunications networks. Nortel Networks Limited (‘NNL’), established in Mississauga (Canada), held the majority of the Nortel group’s worldwide subsidiaries, including NNSA.  In 2008 insolvency proceedings were initiated simultaneously in Canada, the US and the EU. In January 2009, the High Court opened main insolvency proceedings under English law in respect of all the companies in the Nortel group established in the EU, including NNSA, pursuant to Article 3(1) of the Insolvency Regulation.

Following a joint application lodged by NNSA and the joint administrators, by judgment of May 2009 the court at Versailles opened secondary proceedings in respect of NNSA. In July 2009, industrial action at NNSA was brought to an end by a memorandum of agreement settling the action. It provided for the making of a severance payment, of which one part was payable immediately and another part, known as the ‘deferred severance payment’, was to be paid, once operations had ceased, out of the available funds arising from the sale of assets. That memorandum was approved by the court at Versailles. NNSA’s positive balance was subsequently however caught up in the global settlement for Nortel, including transfers of funds to escrow accounts in the US, to be distributed following global settlement, and new debt following the continuation of Nortel’s activities as well as costs related to the global winding-up of the company. The deferred severance payment therefore could no longer be paid.

The works council of NNSA and former NNSA employees brought an action before the court at Versailles seeking, first, a declaration that the secondary proceedings give them an exclusive and direct right over the share of the overall proceeds from the sale of the Nortel group’s assets that falls to NNSA and, second, an order requiring the liquidator to make immediate disbursement, in particular, of the deferred severance payment, to the extent of the funds available to NNSA. the French liquidator then summoned the joint administrators as third parties before the referring court. However, these then suggested the court at Versailles decline international jurisdiction, in favour of the High Court at London, and in the alternative, to decline jurisdiction to rule on the assets and rights which were not situated in France for the purposes of Article 2(g) of the Insolvency Regulation when the judgment opening the secondary proceedings was delivered. That Article reads

(g) “the Member State in which assets are situated” shall mean, in the case of: – tangible property, the Member State within the territory of which the property is situated, – property and rights ownership of or entitlement to which must be entered in a public register, the Member State under the authority of which the register is kept, – claims, the Member State within the territory of which the third party required to meet them has the centre of his main interests, as determined in Article 3(1);

There are essentially two parts to the referring court’s questions: (i) the allocation of international jurisdiction between the court hearing the main proceedings and the court hearing the secondary proceedings; and (ii) identification of the law applicable to determine the debtor’s assets that fall within the scope of the effects of the secondary proceedings.

On the (i) first question, the Court first reviewed whether the Insolvency Regulation applied at all – an issue seemingly which did not feature in the national proceedings nor in the written procedure before the CJEU, however which came up at the hearing. The issue being that what the Works Council was after was that an agreement to pay a debt be honoured: one that looks just like a fairly standard agreement were it not to arise out of insolvency. Per Nickel and Goeldner the Court reviewed whether the right or the obligation which respects the basis of the action finds its source in the common rules of civil and commercial law or in the derogating rules specific to insolvency proceedings. Here, the basis of the action, as was pointed out by Mengozzi AG, was relevant French insolvency law (for the determination of the order of creditors’ rights) and the Insolvency Regulation (for the determination of the hierarchy between main and secondary insolvency proceedings). The Insolvency Regulation therefore applies. The AG’s review in fact was clearer than the Court’s summary. More generally, the ECJ does seem to go out of its way to re-emphasise the Nickel and Goeldner formula, even if the separation of the Brussels I and the Insolvency Regulation was not particularly controversial in the case at issue.

Next, the Court essentially extended its Seagon/Deko Marty case-law to secondary proceedings. In Seagon, the Court held that Article 3(1) must be interpreted as meaning that it also confers international jurisdiction on the courts of the Member State within the territory of which insolvency proceedings were opened to hear an action which derives directly from the initial insolvency proceedings and which is ‘closely connected’ with them, within the meaning of recital 6 in the preamble to the Regulation. In Nortel the Court holds that Article 3(2) of that regulation must be interpreted analogously. Here, the related action seeks a declaration that specified assets fall within secondary insolvency proceedings. It is designed specifically to protect the local interests which justify the very establishment of jurisdiction for the secondary proceedings.

However, such action quite obviously has a direct effect on the interests administered in the main insolvency proceedings. The jurisdiction for the court of the secondary proceedings therefore cannot be exclusive. It is jurisdiction concurrently with the Member State of COMI. This is an altogether sec appreciation of the Court which, as Bob Wessels notes, in reality will create serious co-ordination headaches (one for which I do not think even the provisions for co-ordination in the new insolvency Regulation provide sufficient answer).

Finally, in reply to question (ii), the ECJ is fairly brief: Article 2(g) ought to suffice to give the referring court the guidance it seeks. Granted, the ECJ says, it will not be easy. But it ought to suffice. The one extra guidance the CJEU gives is that that provision is also applicable if the property, right or claim in question must be regarded as situated in a third State (such as here: in the escrow accounts).

All in all, quite an important judgment, indeed. Unlike Nortel’s sad demise, this judgment has quite a life ahead of it.

Geert.

 

Dans un arrêt du 9 juillet 2015, la Cour européenne des droits de l’homme (CEDH) décide qu’en cas de renvoi par la France d’un étranger d’origine tchétchène vers la Russie, il y aurait violation de l’article 3 de la Convention européenne des droits de l’homme (interdiction de la torture). Dans cette affaire, l’étranger, débouté de l’asile, soutenait qu’il était menacé par les autorités russes du fait de l’engagement de ses cousins au sein de la rébellion tchétchène. Il alléguait avoir été détenu et torturé à plusieurs reprises pour cette raison.

En carrousel matière:  Non Matières OASIS:  Néant

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Il se déduit de l’article 728-4 du code de procédure pénale que l’adaptation de la peine prononcée, à l’étranger, à l’encontre du condamné transféré se fait au regard de la loi française en vigueur à la date de son transfèrement.

En carrousel matière:  Oui Matières OASIS:  Application de la loi pénale dans le temps

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Paul Beaumont and Katarina Trimmings (Director and Deputy Director of the Centre for Private International Law, University of Aberdeen, respectively) have just published a highly interesting paper on “Recent jurisprudence of the European Court of Human Rights in the area of cross-border surrogacy: is there still a need for global regulation of surrogacy?”. The article is the second paper in the Working Paper Series of the Centre for Private International Law (University of Aberdeen) and is now available on the Centre’s website here.

The first part of their paper examines the recent decisions of Chambers of the European Court of Human Rights in cases of Mennesson v. France (on this case, see the earlier post by Marta Requejo), Labassee v. France (cf. the earlier post by F. Mailhé), and Paradiso and Campanelli v. Italy. It then makes some suggestions as to how the Grand Chamber should deal with the Paradiso and Campanelli case before analysing the likely consequences of the Mennesson and Labassee judgments for national authorities in the context of surrogacy. The article then explores whether, following these decisions, there is still a need for an international Convention regulating cross-border surrogacy.

For those interested in recent developments in German case law on cross-border surrogacy, I also recommend an earlier post by Dina Reis.

« La loi du lieu de l’accident définit l’assiette du recours de l’organisme d’assurance sociale qui indemnise la victime de cet accident ».

En carrousel matière:  Oui Matières OASIS:  Accident de trajet Recours contre les tiers responsables (Assurance maladie)

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