INSOL Europe EC case register adds Italian and German cases

INSOL Europe EC case register adds Italian and German cases

We look at two new abstracts applying the Recast Regulation on Insolvency 848/2015 which have been uploaded to the INSOL Europe EC Case Register: one from Italy and one from Germany.

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 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 Italian case on COMI (centre of main interests)

In the case of Sentenza n. 7470 X Ltd (incorporated under English law), Y S.r.l. in insolvency, Z S.p.A.  [2017] EIRCR(A) 675 , the Italian Supreme Court of Cassazione considered the existence of Italian jurisdiction over an Italian company that transferred (allegedly, fraudulently) its registered office and headquarters to London on 24th April 2013.

The Italian Supreme Court affirmed the Court of Appeal’s earlier decision that the Italian Court had jurisdiction to open the insolvency proceeding of Y S.r.l.

The notion of COMI has been confirmed in the recent draft delegation bill aimed at reforming Italian insolvency law, forwarded to the Italian Ministry of Justice on 22nd December 2017, which defines COMI as the place where the debtor habitually manages its interests and that is recognisable from the perspective of third parties.

New German case on opening main and secondary proceedings

In the case of NIKI Luftfahrt GmbH  [2018] EIRCR(A) 674, the German First instance court considered the case where competing insolvency proceedings were filed in both Charlottenburg (Germany) on 13 December 2017 and opened in Korneuburg (Austria) on 12 January 2018.

The German appeal court concluded that the proceedings in Germany could be continued as secondary insolvency proceedings. If a German court cannot open main insolvency proceedings because such have already been opened in another EU Member State (art 19(1) of Regulation (EU) 848/2015), but the request for the opening of insolvency proceedings can be interpreted as also including secondary proceedings and the requirements for the opening of secondary proceedings are fulfilled, the German proceedings can be continued as secondary proceedings pursuant to Art. 102c § 2(1) sentence 2 Einführungsgesetz zur Insolvenzordnung Introductory Act to the Insolvency Statute (EGInsO) as applied by way of analogy.

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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About the author:
Kathy specialises in restructuring and cross-border insolvency. She qualified as a solicitor in 1995 and has since worked for Weil Gotshal & Manges and Freshfields. Kathy has worked on some of the largest restructuring cases in the last decade, including Worldcom, Parmalat, Enron and Eurotunnel.