Post on 06-Jan-2016
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CASE C-444/07MG PROBUD GDYNIA SP. Z O.O.ECJ JUDGMENT OF 21.01.2010
DR MAREK PORZYCKI
European Insolvency Regulation
Facts of the case
MG Probud Gdynia sp. z o.o. – a company of Polish law with registered office in Poland and a branch in Germany
Polish insolvency proceedings (upadłość obejmująca likwidację) opened on 9 June 2005 by the Sąd Rejonowy Gdańsk-Północ
Customs Office of Saarbruecken, Germany applied for attachment of assets of the debtor (balance held on a banking account in Germany and claims against German parties), in order to secure claims resulting from alleged infringement of social security regulations.
Attachment order issued by the Amtsgericht Saarbruecken on 11 June 2005
Facts of the case 2
Appeal against attachment order dismissed by Landsgericht Saarbruecken on 4 August 2005
Fear that Polish liquidator would transfer the amounts in question to Poland quoted as reason for upholding the attachment order
No secondary proceedings in GermanySąd Rejonowy Gdańsk-Północ questions the
lawfullness of the attachment, as under Polish bankruptcy law (Article 146 of the BRL) attachment of assets included in the bankruptcy estate is not allowed
Legal issues addressed by the ECJ
Polish decision to open insolvency proceedings did not indicate grounds for international jurisdiction
Registered office of the debtor in Poland + no grounds to rebut the presumption of Article 3(1) of the EIR COMI in Poland, Polish proceedings are main proceedings
Main insolvency proceedings opened in Poland automatic recognition and universal effect under Articles 16(1) and 17(1) of the EIR
Polish law decides whether enforcement measures related to the assets of the debtor are allowed (Article 4 of the EIR)
German authorities are not entitled to order enforcement measures related to assets of the debtor if Polish law does not allow them.
Attachment by German authorities is unlawful, Polish liquidator can presumably transfer the assets to Polish main proceedings (unless secondary proceedings is opend in Germany)