Case C‑594/14

Simona Kornhaas

v

Thomas Dithmar

(Request for a preliminary ruling from the Bundesgerichtshof)

‛Reference for a preliminary ruling — Area of freedom, security and justice — Insolvency proceedings — Regulation (EC) No 1346/2000 — Article 4(1) — Determination of the applicable law — Legislation of a Member State laying down the obligation for a managing director of a company to reimburse that company for the payments made after it had become insolvent — Application of that legislation to a company established in another Member State — Articles 49 TFEU and 54 TFEU — Restriction on the freedom of establishment — None’

Summary — Judgment of the Court (Sixth Chamber), 10 December 2015

1. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — International jurisdiction to open insolvency proceedings — Action brought in the context of insolvency proceedings — Action brought against the managing director of a company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets — Jurisdiction of the courts of the Member State in which the insolvency proceedings have been opened

   (Council Regulation No 1346/2000, Art. 3(1))

2. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Applicable law — Meaning — Legislation of the State opening proceedings serving as a basis for an action against the managing director of a company established under the law of another Member State, seeking reimbursement of payments made by that managing director before the opening of the insolvency proceedings — Included

   (Council Regulation No 1346/2000, Art. 4)

3. Freedom of movement for persons — Freedom of establishment — Company formed in accordance with the law of a Member State and having a branch in another Member State — Opening of insolvency proceedings in the Member State having the branch under Regulation No 1346/2000 — Action brought in the Member State opening proceedings against the managing director of the company seeking reimbursement of payments made before the opening of the insolvency proceedings — Lawfulness

   (Arts 49 TFEU and 54 TFEU; Council Regulation No 1346/2000, Art. 4)

1.  See the text of the decision.

   (see para. 15)

2.  Article 4 of Regulation No 1346/2000 on insolvency proceedings must be interpreted as meaning that an action directed against the managing director of a company established under the law of a Member State, forming the subject of insolvency proceedings opened in another Member State, brought before a court of that latter Member State by the liquidator of that company and seeking, on the basis of a national provision of that latter Member State, reimbursement of payments made by that managing director before the opening of the insolvency proceedings but after the date on which the insolvency of that company was established, falls within its scope.

   A national provision, under which the managing director of an insolvent company must reimburse the payments which he made on behalf of that company after it became insolvent, must be regarded as being covered by the law applicable to insolvency proceedings and their effects, within the meaning of Article 4(1) of that regulation. Furthermore, such a provision contributes to the attainment of an objective which is intrinsically linked, mutatis mutandis, to all insolvency proceedings, namely the prevention of any reduction of the assets of the insolvent estate before the insolvency proceedings are opened, so that the claims of all the company’s creditors may be satisfied on equal terms.

   (see paras 16, 17, 20, 21, operative part 1)

3.  Article 49 TFEU and Article 54 TFEU do not preclude the application, to the managing director of a company established under the law of a Member State who is subject to insolvency proceedings opened in another Member State, of a national provision of that second Member State under which the managing director of an insolvent company must reimburse the payments which he made on behalf of that company after it became insolvent, or after it has been established that the company’s liabilities exceeded its assets.

   (see paras 16, 29, operative part 2)