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)