delivered on 18 April 2024 (1)

Case C‑394/22

Oilchart International NV

ING Bank NV

(Request for a preliminary ruling from the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction – Regulation (EU) No 1215/2012 – Article 1(1) and (2)(b) – Concept of ‘civil and commercial matters’ – Matters excluded – Bankruptcy and proceedings relating to the winding-up of insolvent companies or other legal persons – Regulation (EC) No 1346/2000 – Article 3(1) – Actions deriving directly from insolvency proceedings and closely connected with them)

Oilchart International NV (‘Oilchart’) is a Belgian company which is seeking the recovery of an unpaid invoice for the bunkering of an ocean-going vessel in the port of Sluiskil (the Netherlands). That invoice had been left unpaid when the debtor, O.W. Bunker BV NL (‘OWB NL’), a Netherlands company, became insolvent. The action in the main proceedings was brought in Belgium following the opening of the insolvency proceedings in the Netherlands.

This situation raises the question whether the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), a court which is not presiding over the insolvency proceedings, can have jurisdiction over the action by which Oilchart is seeking the recovery of that invoice.

The case gives the Court of Justice another opportunity to refine its case-law on the demarcation between the respective scopes of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2) (‘the Brussels Ia Regulation’), (3) on the one hand, and of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (4) (‘the Insolvency Regulation’), (5) on the other.

For the purposes of deciding on the issue of international jurisdiction, the referring court has essentially asked the Court whether the action brought by the creditor before a national court – different from the one that is seised with the insolvency proceedings – for an invoice that has been filed for verification with the insolvency liquidator falls within the scope of the Insolvency Regulation or within that of the Brussels Ia Regulation.

Article 1(1) and Article 1(2)(b) of the Brussels Ia Regulation provides:

‘1. This regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. …

…

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

…’

Article 3(1) of the Insolvency Regulation is worded as follows:

‘The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary.’

B. Netherlands law

Article 25 of the Wet van 30 September 1893 op het faillissement en de surséance van betaling, (Law of 30 September 1893 on insolvency and the suspension of payments), the ‘Nederlandse Faillissementswet’ (‘the NFW’) reads as follows:

‘1. Legal actions concerning rights or obligations belonging to the insolvency estate shall be exercised against, as well as by, the liquidator.

Article 26 of the NFW states that:

‘Legal actions seeking of the performance of an obligation from the liquidation estate cannot be brought against the bankrupt person in any way other than that provided for in Article 110.’

Under Article 110(1) of the NFW, ‘claims shall be submitted to the liquidator in the form of an invoice or other written statement indicating the nature and amount of the claim, together with supporting documents or a copy thereof, and a statement as to whether or not a right of preference, pledge, mortgage or right of retention is claimed.’

II. The main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

On 21 October 2014, Oilchart supplied fuel bunkers, in the port of Sluiskil (Netherlands), to the seagoing vessel MS Evita K, owned by Sharsburg Navigation SA. The owner of that vessel had ordered the bunkers, via its agent Orient Shipping Rotterdam, from the Danish company OW Bunker & Trading A/S (‘OWB A/S’), which then forwarded that order to OWB NL, an undertaking which belonged to the same group. OWB NL in turn purchased the bunkers from Oilchart.

On 21 October 2014, OWB A/S issued an invoice to Orient Shipping Rotterdam in the amount of 117179 United States dollars (USD).

On 22 October 2014, Oilchart issued an invoice to OWB NL for the supply of the bunker in the amount of USD 116 471.45 (‘the invoice at issue’). The rechtbank te Rotterdam (District Court, Rotterdam, Netherlands) declared OWB NL bankrupt on 21 November 2014. As a result, the invoice at issue remained unpaid. Oilchart filed its claim with respect to that invoice for verification by OWB NL’s liquidators.

Following the bankruptcy of OWB NL, Oilchart was faced with a series of unpaid invoices that had been issued to OWB NL (the invoice at issue among them) and, as a precautionary measure, had certain seagoing vessels to which it had supplied bunkers arrested. In order to release the vessels, the ship-owners or the mutual insurance associations (‘the P&I clubs’) issued guarantees to Oilchart for the amount of the invoices that it had issued to OWB NL. According to those guarantees, they could be invoked on the basis of a court ruling or an arbitral award handed down in Belgium against either OWB NL or the ship-owner.

On 11 March 2015, Oilchart brought an action before the rechtbank van koophandel te Antwerpen (Commercial Court, Antwerp, Belgium) against OWB NL. ING Bank NV (‘ING’), as a creditor of OWB NL, (6) intervened voluntarily in those proceedings. In its application, Oilchart presented its claim as a commercial claim to seek recovery of an unpaid invoice. It also made an incidental claim against ING, which in turn made a counter-claim. By judgment of 15 March 2017, the rechtbank van koophandel held that it had jurisdiction to rule on Oilchart’s action, but declared the claim for payment inadmissible on the ground that, under the NFW, Oilchart could only submit a claim with respect to debts to the liquidator of the insolvency proceedings.

On 16 May 2017, Oilchart brought an appeal against that decision before the referring court, the hof van beroep te Antwerpen (Court of Appeal, Antwerp). That court considered itself obliged to examine its international jurisdiction, in accordance with Article 28(1) of the Brussels Ia Regulation. (7)

In that context, the referring court, citing the case-law of the Court, expresses doubts as to whether it is necessary to determine whether the action brought by Oilchart against OWB NL is based on the ordinary rules of civil and commercial law within the meaning of Article 1(1) of the Brussels Ia Regulation or whether it is subject to the rules specific to insolvency proceedings. In addition, that court questions whether Article 3(1) of the Insolvency Regulation precludes a provision of national law which allows a creditor to bring, in one Member State, a legal action for payment on behalf of a claim in respect of which it has already made a declaration in the insolvency estate in another Member State.

The referring court takes the view that the exact nature of the action and of the possibility of bringing such an action against the insolvent company can be assessed only by applying the derogating rules specific to insolvency proceedings. However, that court considers that the determination of international jurisdiction should precede the application of the specific derogating rules of Netherlands insolvency law and not be made by the application of those rules.

In those circumstances, the hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(a) Must Article 1(2)(b) of the Brussels Ia Regulation … in conjunction with Article 3(1) of the Insolvency Regulation … be interpreted as meaning that the term “bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings” in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of [the NFW] and whereby:

– it must be determined whether such a claim must be considered a verifiable claim (Article 26 of the NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) of the NFW),

– it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?

And further

(b) Can the provisions of Article 25(2) of [the NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) of the NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?’

Written observations were lodged by Oilchart, ING, the Netherlands Government and the European Commission. On 31 March 2023, the Court sent the referring court a request for information on the legal context of the main proceedings, to which that court responded on 28 April 2023. ING and the Commission presented oral argument before the Court on 1 February 2024.

III. Assessment

In the context of determining whether it has international jurisdiction over the action brought by Oilchart, the referring court expresses doubts as to whether, in the present case, the action at issue should be classified as an insolvency action and thus fall within the bankruptcy exception under Article 1(2)(b) of the Brussels Ia Regulation (‘the insolvency exception’). (8) As its doubts on this point seem to stem from the factual context and nature of the action brought by Oilchart, I shall address those issues in my preliminary remarks (Section A), before analysing the two questions asked by the referring court (Sections B and C).

It should be observed that the referring court has found that Oilchart, despite not citing the legal basis of its action in the application, has always based its claim on Article 25(2) of the NFW. However, the referring court also notes that Oilchart has filed the same claim with the liquidator in the Netherlands, pursuant to Articles 26 and 110 of the NFW (as a verifiable claim within the estate), on the one hand, and, before the Belgian courts, pursuant to Article 25(2) of the NFW, against the bankrupt debtor, (9) OWB NL (as an unverifiable claim outside the estate), on the other. (10) Therefore, it is of paramount importance to point out that Oilchart has submitted the same claim twice: once to the liquidator in the context of the insolvency proceedings and once to the Belgian court as a civil claim. Nonetheless, according to the referring court, the same claim cannot be both a verifiable and an unverifiable claim.

Moreover, it should be observed that ING and the Netherlands Government have both challenged the legal grounds relied on by Oilchart – Article 25(2) of the NFW – to bring its action before the referring court.

Under Article 110(1) of the NFW, ‘claims shall be submitted to the liquidator in the form of an invoice or other written statement indicating the nature and amount of the claim, together with supporting documents or a copy thereof, and a statement as to whether or not a right of preference, pledge, mortgage or right of retention is claimed.’

In that respect, it should be observed that Article 25(2) of the NFW essentially provides that, when legal actions are exercised against the bankrupt debtor (and not the liquidator), then a judgment with respect to that claim is to have no legal force against the insolvency estate. In other words, it seems that, under that provision, if the creditor brings an action outside the insolvency proceedings against the debtor, then the judgment can have effects only ‘outside the estate’ and be unenforceable against the liquidator or the insolvency estate. ING and the Netherlands Government contend, with some plausibility, that that provision cannot serve as a legal basis for an action which affects the estate.

Since the referring court has not made a determination on the issue of the appropriate legal grounds of the action which is brought before it, it is impossible to determine whether that court can have international jurisdiction. The case thus presents the Court with a conundrum. On the one hand, as the referring court states, the formal legal basis of the claim is Article 25(2) of the NFW, according to which an action brought outside the insolvency proceedings cannot have effect on the insolvency estate. On the other hand, the referring court emphasises that the effects of that action have repercussions on the estate and on the insolvency proceedings.

In my view, it is for the referring court to characterise the claim at issue since, in proceedings under Article 267 TFEU, it is not for the Court to rule on the interpretation of national law provisions or to decide whether the referring court’s interpretation of them is correct. It follows that, in the exercise of the jurisdiction conferred upon it, the Court cannot entertain arguments on the appropriate legal grounds of the action under national law or decide on the characterisation of that action brought before the referring court.

Since it is for the referring court, for the purposes of the determination of its international jurisdiction, to characterise the action at issue appropriately, it is likewise for that court, in the exercise of its procedural autonomy, to establish the true nature of the claim.

In the analysis which follows, I shall assume that the claim was brought (and has been characterised as such by the referring court) on the basis of a provision of the NFW, the lex concursus, and that it has repercussions on the estate, while the exact legal grounds need to be determined by that court.

B. First question

By its first question, the referring court asks, in essence, whether an action based on a claim concerning a contractual obligation to pay for a supply of goods against an insolvent company falls within the concept of ‘civil and commercial matters’, within the meaning of Article 1(1) of the Brussels Ia Regulation, and, therefore, within the material scope of that regulation, or whether that action falls within the scope of the Insolvency Regulation, since that claim is the subject of insolvency proceedings in another Member State.

In particular, it is clear from the questions referred for a preliminary ruling that that court has doubts as to whether it has jurisdiction over the action at issue, which would be the case only if the claim were not connected to the insolvency proceedings that were opened and that are taking place in the Netherlands. According to settled case-law, Article 3(1) of the Insolvency Regulation confers exclusive jurisdiction to open the main insolvency proceedings on the courts of the Member State within the territory of which the centre of the debtor’s interests is situated to hear and determine actions to set aside based on the debtor’s insolvency.

In order to answer that question, I shall examine, first, the impact of a parallel action with respect to the same contractual claim, by focussing on the rationale of the insolvency exception (Section 1). Next, I shall analyse the content of the two criteria set by the case-law (Section 2).

As one scholar has put it, insolvency proceedings are jurisprudential and legal artefacts. There is no such thing as ‘the nature’ of insolvency proceedings out of which certain characteristics of such proceedings could be derived. What is important, for the purposes of the definition or characterisation of actions, are the legal (and economic) consequences that follow from such a definition or characterisation and the conditions under which these consequences can be justified. Accordingly, insolvency proceedings are proceedings which attempt to address the creditors’ common pool of assets problem (‘the common pool problem’) by way of creating a collectivised procedure. The collective proceedings, which seeks to overcome destructive asset grabbing and justifies the existence of preferences between creditors, is the raison d’être of the insolvency exception. For the purposes of this Opinion, I shall refer to a ‘result-oriented approach’.

In the present case, with respect to the economic and legal consequences of the action, the referring court has clearly stated that the action at issue has repercussions for the insolvency estate. In particular, it considers that Oilchart, by bringing the action at issue before a court in Belgium after the bankruptcy of OWB NL, seeks to obtain a judgment in its favour in order subsequently to call on the guarantees. Accordingly, the referring court notes that, by seeking to obtain an individual enforcement of the credit, Oilchart in fact seeks to effect, outside the confines of competition, recovery of the proceeds from the claim that OWB NL has on the Danish company OW Bunker. The parallel pending action before the Belgian courts would have a direct impact on the rank of creditors and, possibly, on the composition of the insolvency estate. In that way, the collective proceedings of the creditors under Netherlands insolvency rules could be set aside by a judgment of the Belgian court in favour of Oilchart, which, as a non-privileged creditor, would collect its claim outside the ‘common pool’. It follows that the action at issue would constitute a circumvention of the collectivised debt collection mechanism, which is exactly what the creation of an insolvency exception is trying to avoid.

With respect to parallel actions, in a purely internal national system, a stay is generally imposed on creditors in order to prevent the individual enforcement or collection of claims outside the insolvency proceedings. In a cross-border situation, when insolvency proceedings are opened, the other Member States must recognise those proceedings. This means that, when such a stay is imposed on creditors, that stay should also be recognised by those Member States. In the present case, the Court does not have any indication as to the existence of such a mechanism and of an intention on the part of the referring court to rely on it. It follows that, since it has been established that the claim at issue has been submitted to the liquidator in the insolvency proceedings in the Netherlands, it is for the referring court to establish whether Oilchart is subject to such a stay or to any other restriction to bring parallel proceedings. If that is the case, it could also be argued that the claim at issue is part of the insolvency proceedings both substantively and procedurally, and thus falls under the Insolvency Regulation. Thus, if a stay or a restriction is imposed on creditors, it should follow that a foreign court lacks jurisdiction to hear the action.

That approach is in line, on the one hand, with the imperative of protecting creditors’ interests and with the principles of unity and universality of insolvency proceedings underpinning the Insolvency Regulation. Since insolvency proceedings are collective proceedings, the court where the centre of the debtor’s main interests is situated will be dealing with the bulk of the debtor’s affairs. That approach seeks to protect the interests and ranking of creditors in the event of insolvency and to guarantee a more efficient and effective means of payment to creditors.

In that respect, insolvency proceedings opened in one Member State should be given full effect in other Member States. I would point out that one of the main objectives of the Insolvency Regulation is to ensure the effectiveness of insolvency proceedings while avoiding forum shopping, which is apparent, in particular, from recitals 2 and 4 of that regulation. In that respect, the Court specifically stated in the judgment in Seagon that concentrating all the actions directly related to the insolvency of an undertaking before the courts of the Member State with jurisdiction to open the insolvency proceedings also appears consistent with the objective of improving the effectiveness and efficiency of insolvency proceedings having cross-border effects. Rather than each creditor engaging in investigations into the debtor’s assets and establishing the genuineness of the creditor’s claims for inability to pay debts, during insolvency, this is done by the liquidator for the benefit of all creditors, which not only saves on costs, but also promotes operational efficiency.

It follows that, when a claim is the subject of insolvency proceedings, it falls within the competence of the insolvency practitioner who operates under the supervision of the insolvency court. Thus, in principle, that claim should not be artificially removed from the collective proceedings.

On the other hand, the principle of priority should be applied. The fact that insolvency proceedings within the meaning of Article 1(1) of the Insolvency Regulation have been opened means that the status of one of the parties has changed. The most important consequence of the opened insolvency proceedings is that the law applicable to insolvency proceedings under that regulation is that of the Member State within the territory of which such proceedings are opened, and that the opened proceedings will be recognised automatically in all other Member States. That recognition entails that the court of another Member State does not have the power to scrutinise the insolvency court’s decision. This has the effect that any assets which are part of the insolvent person’s estate cannot be subject to an enforcement of claims by a single creditor and to a circumvention of the insolvency proceedings. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court (other than the court first seised) should avoid adopting a judgment which is irreconcilable to the insolvency proceedings.

In that respect, it is important to point out that, in its recent Grand Chamber judgment, the Court held that, whilst, under Article 1(2)(d) of Regulation No 44/2001 – the predecessor to the Brussels Ia Regulation which contains the same exception – arbitration is explicitly excluded from its scope, the lis pendens rule applied, in particular, to the award adopted by an arbitrator. It considered that ‘any court other than the court first seised must of its own motion stay its proceedings until such time as the jurisdiction of the court first seised has been established and then, where the jurisdiction of the court first seised is established, decline jurisdiction in favour of that court’. The Court thus emphasised (even for an area which clearly falls outside the scope of the Brussels Ia Regulation) the importance of priority of the court first seised. Applying this to the present case by way of analogy, it is important to respect the priority of the insolvency court in the Netherlands.

In that respect, at the hearing, the Commission contended that the opening of the insolvency proceedings bears no consequences for the jurisdiction of the court where a parallel action has been brought, but rather for the applicable law of the action. According to the Commission, the lex concursus dictates the admissibility or the merits of that parallel action, which should be rejected. In my view, first, such an approach renders meaningless the rules of jurisdiction contained in the Insolvency Regulation and, in particular, in Article 3(1) thereof. Second, by stating that it is for the court of the other Member State to reject the parallel action, the Commission is essentially admitting that, in principle, the parallel action is problematic. However, it is left to a national court, which, on the basis of a foreign lex concursus, should provide a solution (that is, rejection on the merits) to the parallel action. In my view, in order to preserve the abovementioned objectives, the national court, without having to undertake the examination of the provisions of a foreign lex concursus, should be able to declare its lack of competence on the grounds that the action at issue falls under the exclusive jurisdiction of the insolvency court located in another Member State. Such an approach would provide more legal certainty to the parties involved in the insolvency proceedings and involve a certain consistency in the application of Article 3(1) of the Insolvency Regulation in different Member States once insolvency proceedings have been instituted in a Member State.

In conclusion, it is clear from the information provided by the referring court that the claim brought before the referring court is identical to the claim made in the insolvency proceedings in the Netherlands. Since the debtor has been declared bankrupt and the issue falls under Netherlands insolvency rules, the referring court should establish whether there is a stay which prevents other courts from hearing the matter. In that case, I would argue that an action based on a contractual obligation – which is the subject of the Netherlands insolvency proceedings and which should be, in principle, subject to a stay of individual creditors’ actions – falls within the scope of the Insolvency Regulation and within the jurisdiction of the court where the insolvency proceedings were opened. However, the Court’s case-law, which at times points in the opposite direction, is rather inconsistent.

Whilst Article 3(1) of the Insolvency Regulation refers to ‘insolvency proceedings’, by virtue of the Court’s case-law, that provision also encompasses ‘insolvency-related actions’. In its seminal judgments in Gourdain and in Seagon the Court ruled that insolvency-related actions are outside the scope of the predecessor of the Brussels Ia Regulation and within the scope of the Insolvency Regulation. For that purpose, the Court applied the dual criterion set by the judgment in Gourdain (‘the Gourdain criteria’).

In particular, according to the formula adopted by that case-law, an action which derives directly from insolvency proceedings (first criterion) and is closely connected with them (second criterion), falls within the scope of the Insolvency Regulation, and thus outside the scope of the Brussels Ia Regulation.