29.1.2011

Official Journal of the European Union

C 30/13

(Case C-494/10)

()

2011/C 30/20

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Dr Biner Bähr, in his capacity as liquidator in respect of the assets of Hertie GmbH

Defendant: HIDD Hamburg-Bramfeld B.V.1

Questions referred

1.Does the Court adhere in principle to its case-law in Seagon v Deko (Case C-339/07 [2009] ECR I-00767) to the effect that the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction under Article 3(1) of Council Regulation No 1346/2000 of 29 May 2000 on insolvency proceedings (1) to decide an action to set a transaction aside by virtue of insolvency that is brought against a person whose registered office is in another Member State even where, in addition to a claim arising from the right to seek to have a transaction set aside by virtue of insolvency, the claims pursued are primarily claims arising from rules on the maintenance of capital laid down in national company law which, from an economic point of view, are directed at the same assets as, or assets additional to, those pursued by the claim arising from the right to seek to have a transaction set aside by virtue of insolvency and which are independent of the opening of insolvency proceedings?

2.If question 1 is to be answered in the negative: Does an action to set a transaction aside by virtue of insolvency the subject-matter of which is concurrently and primarily a claim independent of insolvency proceedings which is pursued by the liquidator on the basis of company law and which, from an economic point of view, is directed at the same or additional assets, fall within the scope of the exception ratione materiae provided for in Article 1(2)(b) of Regulation No 44/2001, (2) or is international jurisdiction to decide such an action determined in accordance with Regulation No 44/2001, in derogation from the judgment of the Court in Seagon v Deko?

3.Do ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001 arise even where the connection between the parties to the dispute is attributable merely to an indirect relationship consisting in a 100 % holding by the group’s parent company in each of the companies party to the dispute?

(1) Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings; OJ 2000 L 160, p. 1.

(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; OJ 2001 L 12, p. 1.