INSOL Europe EC case register adds Austrian case (Niki Luftfahrt GmbH)

We look at a new abstract from Austria applying the Recast Regulation on Insolvency 848/2015 which has been uploaded to the INSOL Europe EC Case Register.

What is the INSOL Europe EC case register?

INSOL Europe and LexisNexis have joined forces to bring you the case register. This unique case abstract service provides summaries of over 500 judgments, from the Court of Justice of the European Union and first instance and appeal courts of the EU Member States, that consider a significant point relating to the Recast Regulation on Insolvency, Regulation (EU) 848/2015 (Recast Regulation on Insolvency) or earlier EC Regulation on Insolvency, Regulation (EC) 1346/2000 (EC Regulation on Insolvency).

Why are case abstracts from other Member States helpful?

With EC case law, decisions of the EU Court of Justice bind all Member States, though where the EU Court of Justice has given limited guidance on a particular area, courts may look to decisions of other courts in the Member States for some guidance, although they will not be binding. The INSOL Europe Case Register contains summaries of judgments that consider a significant point relating to the Recast Regulation on Insolvency (or formerly the EC Regulation on Insolvency).

New Austrian case on overturning a decision opening main proceedings

In the case of Niki Luftfahrt GmbH [2018] EIRCR(A) 679, the Austrian first instance court (Landesgericht Korneuburg) decided that where (i) a decision opening main insolvency proceedings is overturned by the court of appeal and (ii) according to national law of the opening Member State, this decision becomes effective immediately (notwithstanding a possible appeal to the supreme court), the courts of another Member State can open main insolvency proceedings since there is no longer a judgement that must be recognised according to Article 19 of Recast Regulation on Insolvency, Regulation (EU) 848/2015.

The key facts are as follows:

  • 13 December 2017: the court of first instance in Charlottenburg, Germany opened main insolvency proceedings over the assets of Niki Luftfahrt GmbH (an airline) and appointed a liquidator as it considered the debtor’s centre of main interests (COMI) to be in Germany
  • 2 January 2018: a creditor appealed against the opening in Germany according to Art 5 of Recast Regulation on Insolvency, Regulation (EU) 848/2015 and German national law. On the same day, he also filed for the opening of main insolvency proceedings at the court of first instance in Korneuburg, Austria
  • 8 January 2018: the court of appeal in Berlin confirmed the creditors’ appeal, taking into consideration that according to Art 3 of Recast Regulation on Insolvency, Regulation (EU) 848/2015 the debtor’s COMI was in Austria and so German courts had no jurisdiction to open main insolvency proceedings. The court of appeal in Berlin allowed the appeal to the German Supreme Court
  • 10 January 2018: the liquidator appointed in Germany filed for the opening of secondary insolvency proceedings according to Arts 3(3) and 19 of Recast Regulation on Insolvency, Regulation (EU) 848/2015 before Austrian courts as main insolvency proceedings were opened in Germany. In the alternative, the courts in Austria should change the nature of these proceedings to main insolvency proceedings.

For further details, see the full case abstract prepared by Andreas Geroldinger, Professor, Johannes Kepler University Linz in the INSOL Europe case register at Niki Luftfahrt GmbH [2018] EIRCR(A) 679.

This analysis was first published on LexisPSL Restructuring and Insolvency.

Further Reading

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Recast Regulation—main, secondary and territorial proceedings

Recast Regulation—establishing the centre of main interests (COMI) for corporates

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