delivered on 28 October 2021 (1)

Case C‑498/20

ZK, in his capacity as successor to JM, liquidator in the bankruptcy of BMA Nederland BV

BMA Braunschweigische Maschinenbauanstalt AG

(Request for a preliminary ruling from the rechtbank Midden-Nederland (District Court, Central Netherlands, Netherlands))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and enforcement of judgments in civil and commercial matters – Jurisdiction in non-contractual matters – Claim by the bankruptcy liquidator against a third party in the interests of creditors – Place of the tort/delict – Third-party proceedings to protect collective interests)

The referring court has referred to the Court of Justice for a preliminary ruling a number of questions the answer to which it regards as necessary in order to be able to resolve a complex dispute involving national proceedings for the protection of collective interests. (2) That dispute concerns an action for a declaration as to the non-contractual liability of a German company brought by the liquidator in the bankruptcy of one of its subsidiaries (which is established in the Netherlands) and by a foundation also established in the Netherlands.

In accordance with the Court’s instruction, this Opinion will deal only with the question concerning Article 4 of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations. (3) Nonetheless, as the parties’ observations also reflect differences of opinion as to the scope of that regulation which it behoves the Court to resolve, my Opinion will also extend to these.

I shall not, however, look at the questions concerning international jurisdiction in order to identify the court to which it falls to settle the dispute on the basis of the place of the tort/delict and in the event of third-party proceedings. (4)

In accordance with the opening sentence and paragraph 2 of Article 7:

‘A person domiciled in a Member State may be sued in another Member State:

…

(2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.

In accordance with the opening sentence and paragraph 2 of Article 8:

‘A person domiciled in a Member State may also be sued:

…

as a third party in an action on a warranty or guarantee or in any other third-party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case’.

Recital 7 states:

‘The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) and the instruments dealing with the law applicable to contractual obligations’.

According to recital 16:

‘Uniform rules should enhance the foreseeability of court decisions and ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage. A connection with the country where the direct damage occurred (lex loci damni) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability’.

In accordance with recital 17:

‘The law applicable should be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. Accordingly, in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively’.

Article 1(2) provides:

‘The following shall be excluded from the scope of this Regulation:

(d) non-contractual obligations arising out of the law of companies and other bodies corporate or unincorporated regarding matters such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies corporate or unincorporated, the personal liability of officers and members as such for the obligations of the company or body and the personal liability of auditors to a company or to its members in the statutory audits of accounting documents’.

In accordance with Article 4:

‘1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.’

In accordance with Article 3:305a(1) of the Burgerlijk Wetboek (Civil Code): (5)

‘A foundation or association with full legal capacity may bring an action for the protection of similar interests of other persons, provided that its articles of association make provision for the protection of such interests’.

In bringing a Peeters-Gatzen action, (6) a bankruptcy liquidator is acting to protect the interests of the general body of creditors. The proceeds of that action are added to the bankruptcy estate for distribution, in accordance with the rules of insolvency.

II. Facts and questions referred

BMA Nederland BV (‘BMA NL’), a Netherlands company specialising in the manufacture and sale of machinery for the food industry, has as its sole shareholder BMA Groep BV (‘BMA Groep’).

BMA Groep is in turn wholly owned by the German company BMA Braunschweigische Maschinenbauanstalt AG (‘BMA AG’).

BMA Groep had the power to appoint and dismiss directors of BMA NL. In certain periods, BMA AG employees were appointed as statutory directors of BMA NL.

Important decisions and acts of BMA NL had to be submitted to BMA Groep, which then sought approval from BMA AG.

From 2004 to 2011, BMA AG granted loans to BMA NL in the total amount of EUR 38 million. That financing was provided through a bank account opened by BMA NL at Deutsche Bank Nederland BV.

BMA AG also acted as guarantor for BMA NL’s debts and made capital contributions in its favour.

BMA AG terminated its financial assistance to BMA NL in early 2012. BMA NL then had to file for bankruptcy and was declared bankrupt on 3 April 2012. Most of the provisionally admitted unsecured claims are held by German creditors, primarily BMA AG itself and other companies, established in Germany, belonging to the BMA AG group.

The remaining unpaid creditors were established in various countries, including some outside the European Union. There are insufficient assets in the bankruptcy estate to pay off all of the creditors.

The liquidator in BMA NL’s bankruptcy brought a Peeters-Gatzen action against BMA AG before the Rechtbank Midden-Nederland (District Court, Central Netherlands, Netherlands) for the benefit of the general body of creditors.

By order of 23 May 2018, that court held that it had jurisdiction to hear and determine that action under Article 3 of Regulation (EU) 2015/848. (7)

On 21 June 2016, the Stichting Belangbehartiging Crediteuren BMA Nederland (Foundation to protect the interests of creditors of BMA Nederland; ‘the Foundation’) was formed for the purpose of protecting the interests of BMA NL creditors having suffered damage as a result of the actions of BMA AG.

On 15 August 2018, the Foundation made an application to the same court of first instance to intervene in proceedings between the bankruptcy liquidator and BMA AG. By order of 30 January 2019, that court granted that request, considering itself to have jurisdiction to do so under the opening sentence and paragraph 2 of Article 8 of Regulation No 1215/2012.

In February 2019, the Court delivered its judgment in NK. (8) In that judgment, the Court held that a Peeters-Gatzen action brought by a bankruptcy liquidator falls within the scope not of the Insolvency Regulation but of Regulation (EC) No 44/2001. (9)

For that reason, BMA AG asked the referring court to review the orders of 23 May 2018 and 30 January 2019.

The court of first instance takes the view that it cannot maintain its decision of 23 May 2018, but it doubts whether it must declare itself to have jurisdiction on a ground under Regulation No 1215/2012.

It is in that context that the Rechtbank Midden-Nederland (District Court, Central Netherlands) has referred to the Court of Justice for a preliminary ruling a number of questions only the fourth of which, divided into four paragraphs, is set out here:

‘(a) Must Article 4(1) of [the Rome II Regulation] be interpreted as meaning that “the place where the damage occurs” is the place where the company which offers no redress for the damage suffered by its creditors as a result of the breach of the duty of care referred to above has its registered office?

(b) Does the fact that the claims have been made by a liquidator by virtue of his statutory duty to wind up the estate and by a representative of collective interests for the benefit of (but not on behalf of) the general body of creditors affect the determination of that place?

(c) Does the fact that some of the creditors are domiciled outside the territory of the European Union affect the determination of that place?

(d) Is that fact that there were financing agreements between the Netherlands bankrupt company and its grandparent company which nominated the German courts as the forum of choice and declared German law to be applicable a circumstance which makes the alleged tort/delict of BMA AG manifestly more closely connected with a country other than the Netherlands within the meaning of Article 4(3) of the Rome II Regulation?

III. Procedure before the Court

The reference for a preliminary ruling was received at the Court on 29 September 2020.

Observations were lodged by the bankruptcy liquidator, BMA AG, the Foundation and the European Commission.

It was not considered necessary to hold a hearing.

Since this Opinion is confined to the interpretation of Article 4 of the Rome II Regulation, I must first of all examine the Foundation’s objection in relation to the scope of that regulation. In its view, the liability at issue in the main proceedings is subject to company law and, therefore, excluded from the Rome II Regulation under Article 1(2)(d) thereof.

The response to that objection calls for an interpretation of the concepts used under the Rome II Regulation in accordance with the customary interpretative criteria. Account must also be taken of the need, as indicated by the legislature, to ensure consistency between the Rome II Regulation, Regulation No 1215/2012 and the instruments concerning the law applicable to contractual obligations. (10)

The rationale behind the need for consistency lies, in the case of Regulation No 1215/2012, in the fact that the codification of the rules of conflict are supplementary to the rules of jurisdiction. As regards the rules of conflict in contractual matters, it need only be recalled that the Rome II Regulation was conceived as ‘the natural extension of the unification of the rules of private international law relating to contractual and non-contractual obligations in civil or commercial matters in the Community’. (11)

Consistency in the interpretation of those instruments is not, however, an absolute imperative. It is also important to preserve the internal coherence of each of those instruments and their individual objectives, as well the internal coherence and objectives of the provision at issue. (12)

The Rome II Regulation serves to determine the law applicable, not international jurisdiction. If the place of the tort/delict and the splitting thereof (by way of interpretation) are explicable, in so far as jurisdiction is concerned, on grounds relating to the ease of proof and the proper administration of justice, in the Rome II Regulation, there is only one connecting factor, (13) which is adopted for the specific reasons set out in recital 16 thereof. (14)

According to the order for reference, BMA AG’s (alleged) non-contractual liability arises from a breach of its duty of care to third parties. The referring court, which is in no doubt as to the applicability of the Rome II Regulation, confines itself to setting out the discrepancies between the arguments put forward by the parties to the dispute in this regard. (15)

There is nothing to indicate that the Foundation raised any objection to the applicable law before the referring court. It has raised such an objection, however, before the Court.

According to the Foundation, the action at issue is excluded from the scope of the Rome II Regulation since it is based on BMA AG’s liability as director or shareholder of the insolvent Netherlands company. The duty of care breached by BMA AG is enforceable under company law and liability therefore falls outside the scope of the Rome II Regulation. (16)

The bankruptcy liquidator also attributes the origin of the damage to the German company as (indirect) shareholder in the Netherlands company. It does not infer from this, however, that the Rome II Regulation is inapplicable. (17)

BMA AG, on the other hand, submits that any liability on its part derives from an unlawful act committed as a lender to the insolvent company. (18)

There is, in short, disagreement as to the nature of the duty of care owed by the parent company (BMA AG), which lent the subsidiary financial support for years in order to keep it artificially ‘alive’ and then withdrew that support, thus causing the subsidiary to become insolvent.

It falls to me to give an opinion not on the interpretation or the scope of Netherlands law but only on the scope of the Rome II Regulation in relation to the exclusion laid down in Article 1(2)(d) thereof.

That regulation does not provide a general definition of matters caught by ‘the law of companies’, but neither does it refer to the legal orders of the Member States in this regard. The interpretation of that concept must therefore be independent. (19)

The exclusion in question follows the model contained in Article 1(2)(e) of the Rome Convention (20) and has gone on to feature in Article 1(2)(f) of the Rome I Regulation, including the additional provision concerning the liability of auditors to a company or its members in the statutory audits of accounting documents.

The historical justification for the decision not to extend the Rome Convention to matters pertaining to company law was, above all, circumstantial, inasmuch as work was going on at that time to harmonise substantive company law at Community level. (21) Since that objective has not been fully attained, it is therefore not possible to delimit the scope of the Rome I Regulation (or of the Rome II Regulation) by reference to a lex societatis the material scope of which has been defined by the EU legislature for all the Member States.

The Rome II Regulation provides some support when it comes to listing a set of non-contractual obligations which are excluded from its scope because they fall under company law. However, it does not solve all of the problems, and not only because that list is not exhaustive. (22)

The classification of non-contractual obligations as falling within the scope of the lex societatis or the lex loci delicti (23) continues to be problematic, even where such obligations relate to matters such as those included in the aforementioned list. This is apparent from the variety of approaches taken in practice by the Member States. (24)

The Court, when ruling on the exclusion of contractual obligations, reiterates the explanations given in the Report on the Rome Convention and points out the distinction between the internal relationships or ‘life’ of a company (which are the subject of the exclusion) and its external relationships (which are covered by the regulations). (25)

The Court’s emphasis on that distinction can be extrapolated to the first of the three classes of excluded matters set out in Article 1(2)(d) of the Rome II Regulation: the creation, legal capacity, internal organisation and winding-up of companies. These are all aspects of a company’s internal life which are governed exclusively by company law.

I question, however, whether the ‘internal life’ criterion is sufficient for the purposes of interpreting and delimiting the other two excluded classes: (a) the personal liability of officers and members as such for the obligations of the company or body; and (b) the personal liability of auditors to a company or to its members in the statutory audits of accounting documents.

To my mind, the relevant factor is the legislative wish to keep those matters of a contractual or non-contractual nature for which there is a specific modus operandi subject to a single body of law, the lex societatis, on account of the link between such matters and the operation and organisation of a legal person, be that inward-facing (its ‘internal life’) or outward-facing (its ‘external life’).

In particular, in so far as concerns the personal liability of officers and members for the company’s obligations, the exclusion from the Rome II Regulation is founded on the premiss that the corporate component outweighs any other consideration. If a rule of non-contractual liability is so imbued with considerations specific to the corporate context as to be meaningless outside that context, it is the corporate component that prevails for the purposes of classification.

This was how the Commission put it in the Proposal for a Regulation which it presented in 2003: ‘this question [the personal liability of officers and members for the obligations of a company] cannot be separated from the law governing companies … that is applicable to the company … in connection with whose management the question of liability arises. (26)

I recognise that putting that criterion into practice is not straightforward, and not only on account of the text of the Rome II Regulation but also the very uncertainty that surrounds matters relating to companies.

The claim by that same creditor which is based on the generic duty of care erga omnes, as distinct from the specific duty of care arising from the relationship between the director and the company, does fall within the material scope of that regulation. (27)

A formal indication that enforceable liability is a matter of company law will be that the obligation and the corresponding action are regulated in a body of legislation devoted to the law of companies rather than in the general body of legislation concerning non-contractual liability. This is nonetheless merely an indication and cannot be used mechanically or automatically.

In legal orders in which the applicable law is formally the same (a general rule on non-contractual liability in any circumstances), drawing a distinction will be more difficult than in those where there are separate provisions. Difficult does not mean impossible, since case-law will almost certainly have outlined the differences.

Conversely, the inclusion of a rule on direct (as opposed to ‘derivative’) actions against directors in a body of legislation devoted to companies does not necessarily divest that legislation of its nature as a provision on general non-contractual liability: it will be necessary to examine its ratio legis. (28)

Another distinctive element will be the rules laid down for each type action. The ultimate purpose of both the ‘derivative’ action brought by a creditor and the direct action is to have an executive (or decision-making) body of the company found liable for the latter’s debts: however, what must be proved in the corresponding legal proceedings differs in each case, (29) as do the defences on which the director may rely. (30)

In the light of the foregoing, it could be said that matters excluded from the Rome II Regulation include, for example:

–The liability of a director who fails to discharge his duty to file for the dissolution (or bankruptcy) of the company where it is legally appropriate to do so. (31)

–An action against the members of the company for having failed to take the actions required to formalise the creation of a limited liability company. (32)

–An action against the members of the board of directors liable for the debts incurred by the company, in the case where they do not take certain formal measures intended to keep the company’s financial situation under review if the company does not have sufficient financial resources. Reference to that liability was made in Article 18, contained within Chapter 25, of the Aktiebolagslag (Swedish Law on limited liability companies), examined in the judgment in ÖFAB.

Conversely, actions for damages that may be available to shareholders and third parties for acts of directors that directly harm their interests, where the rules governing such actions are consistent with the general rules on liability, would be included.

I recognise, however, as I have already said, that this criterion for distinguishing one class of liability from another does not offer the clarity that would be desirable, but I cannot find any other that provides more clear-cut outcomes.

It falls to the referring court to determine whether the Rome II Regulation is applicable to the present case, in the light of the circumstances of this dispute and the submissions set out above. In the event that it should endorse the affirmative answer that is implicit in its order for reference, I shall look now at the fourth question put to the Court, which is itself made up of four questions.

In accordance with Article 4 of the Rome II Regulation, the law applicable will, in principle, be that of the place where the damage occurred, unless: (i) the parties have chosen the law of another place, (33) in accordance with Article 14; or (ii) one of the situations envisaged in the special conflict rules contained in Article 5 et seq. is present.

In order to identify where the damage occurred in the present case:

–Article 4(1) indicates, in fine, that both the country in which the event giving rise to the damage occurred and the country in which any indirect consequences of that event occurred are irrelevant.

–The Court has already clarified (in connection with Article 5(3) of the Brussels Convention) (34) what may be understood by the place where the damage occurred in a situation similar to that in the present case. (35)

In the judgment in Lazar, (40) the Court had to determine the law applicable to a claim brought by the relatives of a person killed in a road-traffic accident which had taken place in a Member State other than that of the claimants’ residence. For these purposes:

–It reiterated that, in accordance with Article 2 of the Rome II Regulation, ‘damage shall cover any consequence arising out of tort/delict’; and that damage which is consequent upon the death of an individual in an accident having taken place in one Member State and is suffered by the close relatives of the deceased living in another Member State constitutes an ‘indirect consequence’ within the meaning of Article 4. (41)

–It stated that it is the direct damage that must be taken into account in order to identify the place where the damage occurred.

–Relying on a line of argument based on the scheme of the legislation, (42) and on the objective of ensuring the foreseeability of the law applicable, (43) it held that ‘… where it is possible to identify the occurrence of direct damage …, the place where the direct damage occurred is the relevant connecting factor for the determination of the applicable law, regardless of the indirect consequences [of that accident]’. (44)

If we extrapolate the foregoing to the present case, the referring court – to which it logically falls to clarify such matters – will have to apply Netherlands law if it considers that the bankrupt company’s assets are located in the Netherlands. (45)

The referring court wishes to ascertain whether the determination of the law applicable may depend on whether the actions are brought: (i) by a bankruptcy liquidator as part of his or her statutory duty to liquidate the bankruptcy estate; or (ii) by a representative of collective interests for the benefit of (but not on behalf of) the general body of creditors.

The reasoning set out in the previous point makes it unnecessary to address this question. The place of the damage will be the same whether the action is brought by an individual creditor of the insolvent company or by the liquidator representing the assets of the bankruptcy estate or the Foundation representing the interests of certain creditors. (46)

Furthermore, the bankruptcy liquidator (by way of the Peeters-Gatzen action) and the Foundation (under Article 3:305a(1) of the Burgerlijk Wetboek (Civil Code)) hold a ius agendi, and not a substantive right of their own that provides a basis for their claim. (47)

What the Netherlands legal system does provide, in the form of a Peeters-Gatzen action or an action by a foundation such as that litigating in this case, is a procedural instrument or vehicle that is available to those affected. The use thereof cannot alter the detail of the rules determining the law applicable, which must be foreseeable for the perpetrator of the damage and for the victim, and must take the interests of both into consideration, with a view to reconciling those interests.

3. Point (c): creditors having their registered office in third States

The referring court wishes to ascertain whether the determination of the law applicable may depend on whether the actions are brought: (i) by a bankruptcy liquidator as part of his or her statutory duty to liquidate the bankruptcy estate; or (ii) by a representative of collective interests for the benefit of (but not on behalf of) the general body of creditors.

It would seem that some of the creditors of the company BMA NL have their registered office outside the European Union. The referring court asks whether this might have a bearing on the determination of the place where the damage occurs within the meaning of Article 4(1) of the Rome II Regulation.

As with the previous question, given the circumstances of the case, the answer must be in the negative. After all, where the creditors have their registered office is of no importance, bearing in mind that the damage caused to them is indirect.

In any event, I would recall that the common registered office – in effect, the common habitual residence – of the parties (meaning the causer of the damage and the direct victim thereof) is important for the purposes of Article 4(2), which takes precedence over the rule under paragraph 1.

The fact that, owing to the circumstance that the common habitual residence is located in a third State, an EU court must apply the law of a non-Member State is neither a strange nor an unwanted outcome under the Rome II Regulation, which is universal in nature. (48)

4. Point (d): the so-called escape clause

(a) The ancillary connection to a pre-existing relationship between the perpetrator of the damage and the victim

The referring court asks whether the pre-existence of a financing agreement between BMA AG and BMA NL has a bearing on the determination of the law applicable to the non-contractual liability of the former company to the creditors of the latter.

The question referred cites Article 4(3) of the Rome II Regulation. According to that provision, where, in the light of the circumstances, the tort/delict ‘is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply’.

That article goes on to state that a manifestly closer connection with another country ‘might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question’.

The invocation of that rule, also called an ‘escape clause’, (49) and of the ‘ancillary connection’, or connection with a prior contract or relationship, as an integral part of that rule, prompts a number of reflections.

In order for the escape clause to be triggered and the law of the country where the direct damage occurs to be displaced, there must be a manifestly closer connection between the tort/delict (50) and another country, in the light of all of the circumstances of the case. (51)

The preparatory documents show a lack of agreement on what those circumstances are. (52) The absence of any limitations leads me to think that account must be taken of both the conditions of the parties and the conditions of the causal event or the damage itself. (53)

A pre-existing relationship between the parties (such as a contract) is only one of those circumstances or conditions. (54) Much as it might be argued that, on account of the express reference to it in the regulation, this is a factor of special significance, the fact is that it appears only by way of example. Its importance is not absolute and it is not sufficient in itself to exclude the application of the law of the place of the damage (or, where appropriate, of the common habitual residence of the perpetrator and the victim).

According to Article 4(3), there must also be an essential connection between the prior relationship in question and the tort/delict. On account of that connection, it stands to reason that the law applicable to the dispute should not simply be a law other than that which would follow from Article 4(1) and (2) but must be the same law as that which governs the previous contract.

This makes it easier to manage an action (and the subsequent proceedings) based simultaneously on a breach of both contractual and non-contractual obligations, in the case where liability on both grounds may be cumulated. It also obviates the need to classify certain matters as falling within one or other category of liability.

Those advantages do not, however, justify the automatic application of the law of the contract to the non-contractual liability. As I have submitted, the court has discretion under Article 4(3) of the Rome II Regulation (55) to assess whether there is a significant connection between the non-contractual obligation and the country the law of which governs the pre-existing relationship. (56)

To my mind, that discretion makes sense given, in particular, that the law applicable to the pre-existing contract or relationship may not have been determined objectively but may be the result of a choice made by the parties. In the former case, the connecting factor leading to the law applicable will indicate a real territorial or geographical connection; in the latter, a purely legal one arising from the will of the contracting parties.

It is my opinion, therefore, that the pre-existence of a financing agreement between the companies BMA AG and BMA NL is just another circumstance capable of being taken into account when it comes to deciding whether the tort/delict (allegedly) attributable to BMA AG is manifestly more closely connected with a country other than the Netherlands within the meaning of Article 4(3) of the Rome II Regulation.

(b) Ancillary connection and indirect victims

Although the referring court does not frame the question in these terms, I take the view that it may be useful to consider whether the value of a pre-existing contract or relationship between the parties (as one of the combination of circumstances referred to in Article 4(3) of the Rome II Regulation) is the same in the case where the person pursuing a claim for damage suffered is not the contracting party but a third party. (57)

That is the position in this case, which also entails a choice of law in relation to the financing agreement between the parent company, the person who caused the (alleged) damage, and its subsidiary, the direct victim.

In my opinion, there are arguments to support the proposition that the pre-existing relationship between the contracting parties may be relied upon, for the purposes relevant here, by those who do not have that status:

First, I would recall that the ‘ricochet’ damage is not relevant to the regular determination of the law applicable in accordance with Article 4(1) of the Rome II Regulation. Accordingly, the fact that claimants who have been indirectly affected are not parties to the contractual relationship (between the person who caused the damage and the immediate victim) should not affect the escape clause either, which is simply an exception to the rule.

Second, that conclusion is also explained by the dependence of ricochet damage on the personal injury or financial damage that is sustained in the first place by another victim. If the damage which the latter victim experiences is linked to a prior relationship, and this gives rise to a closer connection between a certain legal system and the tort/delict, I see no inconsistency in applying the same law to damage suffered by a third party as a result of the same tort/delict.

Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

(10) Recital 7 of the Rome II Regulation. See also recital 7 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6; ‘the Rome I Regulation’); and, from the case-law of the Court, inter alia, the judgment of 31 January 2019, Da Silva Martins (C‑149/18, EU:C:2019:84, paragraph 28).

(11) (Commission) Proposal for a Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (‘Rome II’) (COM(2003) 427 final of 22 July 2003, p. 3).

(12) Judgments of 16 January 2014, Kainz (C‑45/13, EU:C:2014:7, paragraph 20), and of 3 October 2019, Petruchová (C‑208/18, EU:C:2019:825, paragraph 63).

(13) Under the Rome II Regulation, the place of the tort/delict is the only connecting factor. It is, moreover, a residual factor within the framework of a scheme which, in theory, prioritises the choice made by the parties (see Article 14) and lays down different rules for certain unlawful acts (Article 5 et seq.).

(14) As regards legal commentary, see, inter alia, von Hein, J., ‘Article 4 Rome II’, in Callies, G.P., Rome Regulations, 2nd ed., Wolters Kluwer, paragraph 5, with further references, who points up the relationship between the foreseeability of the law applicable and the assurance of potential liability for any damage that may be caused in the future. In the context of Article 4 of the Rome II Regulation, the foreseeability (for the perpetrator in relation to the consequences of his actions and for the victim who puts his or her property or integrity at risk in a particular place) is framed in abstract terms, that is to say in such a way as not to refer to the opposing parties in a particular dispute: compare this provision with Article 5(1), in fine.

(15) In paragraphs 4.2, 4.3, 5.2, so far as concerns the bankruptcy liquidator and the Foundation; and in paragraph 7.3, where it explains the defendant’s views on ‘Handlungsort’.

(16) Paragraph 16 et seq. of its written observations. The Foundation draws a parallel with the judgment of 18 July 2013, ÖFAB (C‑147/12, EU:C:2013:490; ‘the judgment in ÖFAB’). It should be recalled that, in that judgment, the question referred for a preliminary ruling related not to the law applicable but to the court having jurisdiction under Regulation No 44/2001. There is no provision in that regulation (or in the one currently in force) which is similar to Article 1(2)(d) of the Rome II Regulation. The issue in that case was whether the defendants’ liability should be classified as contractual (in which case, Article 5(1) would apply) or as non-contractual (in which case, Article 5(3) would apply).

(17) Written observations, paragraphs 1.1, 3.3 et seq.; and reply to Question 4(a) at p. 12.

(18) Paragraph 49 et seq. of its written observations. It rebuts the corporate classification in paragraphs 57 and 58 and does not directly address the applicability of the Rome II Regulation. It highlights the differences between this case and that in the judgment in ÖFAB in order to rule out the proposition that its (alleged) liability is a matter of company law.

(19) Judgment of 10 December 2015, Lazar (C‑350/14, EU:C:2015:802, paragraph 21).

(20) Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1; ‘the Rome Convention’).

(21) Report on the Convention on the law applicable to contractual obligations by Mario Giuliano and Paul Lagarde (OJ 1980 C 282, p. 1; ‘the Report’), in particular p. 12. See also the judgment of 7 April 2016, KA Finanz (C‑483/14, EU:C:2016:205, paragraph 52).

(22) Advocate General Saugmandsgaard Øe, in his Opinion in Verein für Konsumenteninformation (C‑272/18, EU:C:2019:679, point 47), stated that ‘it is difficult, if not impossible, to provide an exhaustive definition of what constitutes a question governed by the law of companies and by the lex societatis. … I further note that, in some legal systems, the conflicts-of-laws rules contain a list of the questions falling within the scope of the lex societatis. However, those lists are only illustrative and differences exist between Member States as to the questions governed by that law. In view of those differences, attention should undoubtedly be focussed on the core set of questions generally accepted in those States’

(23) Or, where appropriate, the lex concursus. See also, on the personal liability of a company’s directors, judgment of 10 December 2015, Kornhaas (C‑594/14, EU:C:2015:806).

(24) See the study by Gerner-Beuerle, C., Mucciarelli, F., Schuster, E. and Siems, M., The Private International Law of Companies in Europe, Hart, Beck, Nomos, 2019, table 4.5, based on data up to September 2018.

(25) Judgments of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraphs 33 and 34), and of 3 October 2019, Verein für Konsumenteninformation (C‑272/18, EU:C:2019:827, paragraph 35 et seq.).

(26) Footnote 11 to this Opinion. The wording of the amended proposal of 21 February 2006, COM(2006) 83 final, in respect of Article 1(2)(d) was even clearer. The final text follows Article 1(2)(e) of the Rome Convention.

(27) See Alfaro Águila-Real, J., ‘Administradores frente a accionistas y acreedores: deberes de lealtad para los accionistas y obligaciones pactadas o legales para los acreedores’, in Bermejo Gutiérrez, N., Martínez Flórez, A. and Recalde Castells, A. (eds), Las reestructuraciones de las sociedades de capital en crisis, Civitas-Thomson Reuters, p. 69 et seq. This author takes the view that, in the circumstances described in point 57 of this Opinion, the creditor brings a ‘derivative action’ which is intended to restore the financial loss to the company, while, in the circumstances described in point 58, he brings a ‘direct action’ relating to the financial damage he has himself sustained. The author goes on to say (pp. 73 and 74) that neither the duties of directors nor the addressees of those duties vary in a situation in which a company faces a solvency crisis; the level of care actionable by creditors may, however, be different. He recognises that there are other views, which he refutes.

(28) Notwithstanding its schematic location, the provision in question may simply be a reference to other contractual or non-contractual liability regimes.

(29) Because the (objective or subjective) criterion for attributing the conduct in question to the director member varies.

(30) Those that could be put forward if the action were brought by the company or its members in a ‘derivative’ action, and those relied on as against each creditor in a direct action.

(31) The rationale behind that particular obligation is to ensure that a company that should have been dissolved or wound up does not continue trading.

(32) The purpose of this liability is to protect third parties dealing with unregistered entities and to incentivise the registration of companies. Thus, in Spain, generally, Articles 119 and 120 of the Código de comercio (Real Decreto de 22 de agosto de 1885, por el que se publica el Código de comercio) (Commercial Code (Royal Decree of 22 August 1885 publishing the Commercial Code)) or, in Germany, Paragraph 11 II of the Law on limited liability companies (GmbHG) (Gesetz betreffend die Gesellschaften mit beschränkter Haftung in der im Bundesgesetzblatt Teil III, Gliederungsnummer 4123-1, veröffentlichten bereinigten Fassung, zuletzt geändert durch Artikel 18 des Gesetzes vom 3. Juni 2021).

(33) According to the order for reference, the contracts between BMA AG and BMA NL contain a choice-of-law clause in favour of German law. I shall look below at the possible impact of this on the determination of the law applicable to the claim brought by the creditors of BMA NL against BMA AG.

(34) 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32, consolidated text in OJ 1998 C 27, p. 1).

(35) Judgment of 11 January 1990, Dumez France and Tracoba (C‑220/88, EU:C:1990:8; ‘the judgment in Dumez France and Tracoba’). The companies Dumez and others sought compensation in respect of the harm which they claimed to have suffered as a result of the insolvency of subsidiaries established in a different Contracting State. The insolvency was alleged to have been brought about by the suspension of a property-development project in Germany, at the request of the prime contractor, which in turn followed the decision of the German banks to cancel the loans granted to the prime contractor.

(36) Ibid., paragraph 20. Emphasis added.

(37) Ibid., paragraph 13.

(38) Ibid., paragraph 14.

(39) It is not therefore damage initially suffered by the creditors, as the bankruptcy liquidator submits in his observations, in paragraph 3.18.

(40)

Judgment of 10 December 2015 (C‑350/14, EU:C:2015:802).

(41) Ibid., paragraphs 22, 23 and 25.

(42) Ibid., paragraphs 26 and 27. Article 15(f) of the Rome II Regulation places the task of determining the persons entitled to compensation – who may be third parties or ‘ricochet’ victims – within the scope of the designated law.

(43) Ibid., paragraph 29.

(44) Ibid., paragraph 25.

(45) No question is raised in this regard. The referring court does not appear to attach any relevance to the difference between the company’s ‘establishment’, ‘registered office’ or ‘seat’ when it comes to identifying the place of the tort/delict (or damage, as appropriate) and determining the ground of international jurisdiction and the law applicable. The Commission, referring to the judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 52), identifies that place as being the company’s registered office: see paragraph 34 of its written observations. In this Opinion, I shall use the terminology employed by the referring court (‘registered office’, in the English translation).

(46) Although this does not have any bearing on the foregoing, it should be noted that the interests represented (or defended) by the bankruptcy liquidator and the Foundation are only partly the same. In the case of the former, these are the interests of the bankruptcy estate: once this has been recovered, the creditors will collect what is owed to them in accordance with the rules of insolvency. The Foundation, on the other hand, acts in the interests of certain creditors in order to obtain, not only certain declarations, but also an order for the payment of a quantity equal to the total of each individual claim, to be made directly to each individual creditor.

(47) The intervention of the liquidator and Foundation has no impact on the rules of conflict in relation to liability, but the specific context (insolvency) in which the claim is pursued may do so. This is almost certainly true of the Peeters-Gatzen action: the scope of the law of the place of the damage, or at least the result of its application, will probably be affected by outcomes arising from the lex concursus, such as the distribution of the proceeds of realising the assets, or the priority of claims, so that the objectives of the rules governing an insolvency can be preserved.

(48) Article 3. It would be a different matter if, in such circumstances, there were a ground of jurisdiction in the European Union, in particular under Regulation No 1215/2012, which requires that the defendant be domiciled in a Member State in order for that regulation to be applicable. There are nonetheless jurisdictional criteria in that legislation which are not subject to that condition, and it is also possible that the Member States have retained residual rules of jurisdiction.

(49) Recitals 14 and 18 of the Rome II Regulation.

(50) Article 4 mentions the tort/delict, whereas recital 18 of the Spanish-language version (unlike the French-, Italian- and English-language versions) uses the term damage. In my opinion, because of its nature and purpose, that clause must be regarded as capable of being triggered where there is a close connection with the tort/delict considered in its entirety – that is to say, from the point of view of all of its elements and consequences. It is not necessary for the connection to exist with the damage interpreted in a strict sense.

(51) In the Spanish and Italian language versions, recital 18 states that account must be taken of all the circumstances. I do not believe that the use of all permits an interpretation different from that of other versions, which refer to the combination of circumstances (as, indeed, the language versions I have been able to consult do in Article 4(3)). The court will always have to take into account all factors indicative of a link between the tort/delict and a State as part of an overall assessment from which it will draw the relevant conclusion.

(52) See, in particular, the European Parliament Resolution on the Proposal for a Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations of 6 July 2005, document A6-0211/2005, Amendment 26, which suggested a form of words for the (current) Article 4(3) which was ultimately not accepted. Also unsuccessful was the amended Proposal for a Commission Regulation of 21 February 2006, COM(2006) 83 final, Article 4(3), which incorporated into the text the expectations of the parties as a particularly strong indication of a connection with a legal system.

(53) See footnote 51 to this Opinion. I take the view, for example, that the location of the indirect damage might be taken into account among other factors, subject always to observance of the exclusion of that as a connecting factor under Article 4(1). In other words, the location of the indirect damage cannot in itself determine the law applicable, as this would circumvent the intention of the legislature, which has regard only to the direct damage as a connecting factor.

(54) This is apparent from the text. See also the Commission proposal of 22 July 2003, cited in footnote 11 to this Opinion. Furthermore, neither that regulation nor the preparatory documents explain how the contract or the pre-existing relationship establish a close connection with a particular country.

(55) See the discrepancy between this provision and paragraph 1 of Articles 10, 11 and 12 of that regulation.

(56) If the national court considers that that connection is present, it must apply the law of the corresponding country.

(57) See the Opinion of Advocate General Saugmandsgaard Øe in Verein für Konsumenteninformation (C‑191/15, EU:C:2016:388, point 78). Although in a different context, the Advocate General does not discount the possibility that the law applicable to the tort/delict may be determined by reference to the law chosen for a pre-existing relationship between parties other than the current applicant and defendant. He goes on to say, in any event, that ‘the fact that the terms and conditions provide for the applicability of Luxembourg law does not, in the absence of any pre-existing relationship either between the parties to the dispute or between the professional and certain specific consumers, give rise to a manifestly closer connection with Luxembourg in such an action’.

(58) It may therefore appear to be imposed on parties that did not consent to it. This is the view taken by ZK. See paragraph 3.24 of his observations.