Judicial cooperation in insolvency proceedings (ENEFI v DGRFP)

Judicial cooperation in insolvency proceedings (ENEFI v DGRFP)

How does the European Insolvency Regulation apply to cross border insolvencies? Paul Sidle, a senior professional support lawyer at Linklaters, answers some questions on the issues that arose out of the decision in ENEFI v DGRFP.

Original news

C-212/15: ENEFI Energiahatékonysági Nyrt v Directia Generala Regionala a Finantelor Publice Brasov (DGRFP) [2016] All ER (D) 110 (Nov)

The Court of Justice of the European Union gave a preliminary ruling, deciding that article 4 of Council Regulation (EC) 1346/2000 (EIR) had to be interpreted as meaning that provisions of domestic law of the state of the opening of insolvency proceedings which provided, in relation to a creditor who had not taken part in the insolvency proceedings, for the forfeiture of its right to pursue its claim or for the suspension of the enforcement of such a claim in another Member State, came within its scope of application. Further, the fiscal nature of the claim pursued by means of enforcement in a Member State other than the state of the opening of proceedings had no bearing on the court’s answer.

How did the issue arise?

In this case, a Romanian tax authority was seeking to enforce the non-payment of a VAT liability by a Hungarian company with an establishment in Romania. But, the Romanian tax authority had failed to lodge that tax claim in the Hungarian insolvency proceedings opened in respect of the Hungarian company. As a matter of Hungarian insolvency law, this meant that the Romanian tax authority could not bring the VAT claim against the debtor and the associated enforcement proceedings were void.

The EIR allocates international jurisdiction on insolvency matters between Member States and also provides for choice of law rules to determine the applicable law in cross-border insolvencies. The starting point is the general choice of law rule in EIR, art 4. That provides that the jurisdiction where insolvency proceedings are opened shall apply its own laws and procedural rules to the opening, conduct and closure of

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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.