10.12.2011

Official Journal of the European Union

C 362/3

(Case C-396/09) (<span class="super">1</span>)

(Reference for a preliminary ruling - Whether a lower court has the power to refer a question to the Court for a preliminary ruling - Regulation (EC) No 1346/2000 - Insolvency proceedings - International jurisdiction - The centre of a debtor’s main interests - Transfer of a registered office to another Member State - Concept of establishment)

2011/C 362/04

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: Interedil Srl, in liquidation

Defendant: Fallimento Interedil Srl, Intesa Gestione Crediti SpA

Re:

Reference for a preliminary ruling — Tribunale ordinario di Bari — Interpretation of Article 3 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1) — The centre of a debtor’s main interests — Presumption as to the place of a company’s registered office — Establishment in another Member State — Community or national concepts

Operative part of the judgment

1.European Union law precludes a national court from being bound by a national procedural rule under which that court is bound by the rulings of a higher national court, where it is apparent that the rulings of the higher court are at variance with European Union law, as interpreted by the Court of Justice.

2.The term ‘centre of a debtor’s main interests’ in Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted by reference to European Union law.

3.For the purposes of determining a debtor company’s main centre of interests, the second sentence of Article 3(1) of Regulation No 1346/2000 must be interpreted as follows:

—a debtor company’s main centre of interests must be determined by attaching greater importance to the place of the company’s central administration, as may be established by objective factors which are ascertainable by third parties. Where the bodies responsible for the management and supervision of a company are in the same place as its registered office and the management decisions of the company are taken, in a manner that is ascertainable by third parties, in that place, the presumption in that provision cannot be rebutted. Where a company’s central administration is not in the same place as its registered office, the presence of company assets and the existence of contracts for the financial exploitation of those assets in a Member State other than that in which the registered office is situated cannot be regarded as sufficient factors to rebut the presumption unless a comprehensive assessment of all the relevant factors makes it possible to establish, in a manner that is ascertainable by third parties, that the company’s actual centre of management and supervision and of the management of its interests is located in that other Member State;

—where a debtor company’s registered office is transferred before a request to open insolvency proceedings is lodged, the company’s centre of main activities is presumed to be the place of its new registered office.

4.The term ‘establishment’ within the meaning of Article 3(2) of Regulation No 1346/2000 must be interpreted as requiring the presence of a structure consisting of a minimum level of organisation and a degree of stability necessary for the purpose of pursuing an economic activity. The presence alone of goods in isolation or bank accounts does not, in principle, meet that definition.

(1) OJ C 312, 19.12.2009.