Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 18 April 2024 (1)

Case C‑394/22

Oilchart International NV

v

O.W. Bunker (Netherlands) BV,

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)

1.        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.

2.        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.

3.        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.

4.        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.

I.      Legal framework

A.      European Union law

1.      Brussels Ia Regulation

5.        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. …

2.      This regulation shall not apply to:

…

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

…’

2.      The Insolvency Regulation

6.        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

7.        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.

2.      If such legal actions are exercised or continued by or against the bankrupt debtor and they lead to a judgment against that bankrupt debtor, then this judgment shall have no legal force against the liquidation estate.’

8.        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.’

9.        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

10.      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.

11.      On 21 October 2014, OWB A/S issued an invoice to Orient Shipping Rotterdam in the amount of 117 179 United States dollars (USD).

12.      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.

13.      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.

14.      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.

15.      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)

16.      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.

17.      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.

18.      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?’

19.      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

20.      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).

A.      Preliminary remarks concerning the factual findings made by the referring court

21.      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.

22.      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.

23.      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.

24.      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.

25.      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. (11) 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.

26.      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.

27.      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

28.      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.

29.      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. (12)

30.      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).

1.      The impact of a parallel action

31.      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. (13) Accordingly, insolvency proceedings are proceedings which attempt to address the creditors’ common pool of assets problem (14) (‘the common pool problem’) by way of creating a collectivised procedure. (15) 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’.

32.      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. (16) 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. (17) 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.

33.      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. (18) This means that, when such a stay is imposed on creditors, (19) 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.

34.      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 (20) underpinning the Insolvency Regulation. (21) Since insolvency proceedings are collective proceedings, (22) the court where the centre of the debtor’s main interests is situated will be dealing with the bulk of the debtor’s affairs. (23) 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. (24)

35.      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 (25) 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. (26) 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. (27)

36.      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.

37.      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. (28) That recognition entails that the court of another Member State does not have the power to scrutinise the insolvency court’s decision. (29) 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. (30)

38.      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’. (31) 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.

39.      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, (32) 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. (33)

40.      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.

2.      The dual criterion set by the case-law

41.      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 (34) and in Seagon, (35) 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’).

42.      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, (36) and thus outside the scope of the Brussels Ia Regulation. (37) Combined with the requirement to interpret the concept of ‘civil and commercial matters’ referred to in Article 1(1) of the Brussels Ia Regulation broadly, (38) the insolvency exception in the Brussels Ia Regulation is restricted to matters which meet the Gourdain criteria. (39) While the Court has been consistent in stating the Gourdain criteria, those criteria have been applied in an inconsistent manner in practice. (40)

43.      In particular, since the Court tends to examine the two criteria together, (41) it is very difficult to establish their scope and exact content. For instance, the case-law does not always match the abovementioned formula and there is uncertainty as regards the relationship between the two criteria and the content of each criterion. (42) At times, the Court only analyses one criterion. (43) Sometimes, it deems one criterion decisive and holds that it prevails over the other, (44) which begs the question of the cumulative nature of those criteria. The case-law of the Court therefore does not always yield coherent rules. Against that background, I shall examine the content and application of those criteria in turn.

(a)    First criterion: the action derives directly from insolvency proceedings

44.      In order to determine whether an action derives directly from insolvency proceedings, the Court examines the legal basis of the action. (45) In that respect, the Court requires it to be determined whether the right or obligation which forms the basis of the action derives from the ordinary rules of civil and commercial law or from derogating rules specific to insolvency proceedings. (46) The Court has emphasised that it should be determined whether the action at issue derived from insolvency law or from other rules. (47)

45.      At the outset, before analysing the Court’s case-law on that criterion, I shall make a preliminary remark with respect to the facts of the case. The referring court observes that, following the bankruptcy of OWB NL, Oilchart sought and secured the arrest – that is, a conservatory attachment – of certain seagoing vessels in Belgium. In order to release the ships, the ship-owners or the the P&I clubs issued guarantees to Oilchart for the amount of the invoices that it had issued to OWB NL. According to that court, the wording of those guarantees allows Oilchart, inter alia, to call on those guarantees on the basis of a judgment against OWB NL.

46.      In that respect, I would note that, should the referring court find that the matter falls under Article 1(1) of the Brussels Ia Regulation, the jurisdiction of the Belgian court will yet to have been established, bearing in mind the fact that the supply of the bunkers took place in the Netherlands and that the insolvency proceedings were also opened at the centre of the debtor’s main interest in that Member State. Moreover, I would point out that, in the present proceedings, it is important to distinguish between the legal basis of the obligation and the mechanism of enforcement of that obligation. Whilst the legal basis of the action lies in the obligations stemming from the contractual relationship between the creditor and debtor, the enforcement of those obligations took place by the attachment of vessels and the constitution of guarantees. I would therefore argue that those guarantees constitute an enforcement of Oilchart’s rights, but not per se the origin of the obligation.

47.      That having been said, I shall next examine the Court’s case-law with respect to the first criterion, which fluctuates widely depending on the approach taken.

48.      At times, the Court seems to opt for a formalistic approach. In the judgment in Riel, for example, the Court specifically pointed out that the provision on the basis of which the action for a declaration of the existence of claims had been brought ‘constituted an element of Austrian insolvency legislation’, adding that it was clear ‘from the wording of that provision that that action is intended to be brought in the context of insolvency proceedings, by creditors participating in those insolvency proceedings, in the event of a dispute concerning the accuracy or ranking of claims declared by those creditors’. (48) More recently, in the judgment in Tiger, the Court ruled that an action by a trustee in bankruptcy appointed by a court of the Member State in which the insolvency proceedings were opened has its legal basis in the United Kingdom rules of law specifically relating to insolvency. (49)

49.      However, the Court also seems to look at whether the action at issue may be brought by the creditors individually either before, during or after the conduct of the insolvency proceedings. In the judgment in Nickel & Goeldner Spedition, the Court observed that an action for the payment of a debt arising out of the provision of services in implementation of a contract for carriage could have been brought by the creditor itself before its divestment by the opening of insolvency proceedings relating to it and that, in that situation, the action would have been governed by the rules concerning jurisdiction applicable in civil and commercial matters. (50) Similarly, in the judgment in NK, the Court held that the action at issue, which could be brought by the creditor himself, so that it did not fall under the exclusive competence of the liquidator, and was independent of the opening of insolvency proceedings, could not be considered a direct and inherent result of those proceedings. (51)

50.      In the present case, therefore, if one were to take the formula adopted by the judgments in Riel and Tiger at face value, since the referring court has held that the legal basis of the action is Article 25(2) of the NFW – and in the absence of any characterisation of the claim at this stage – the claim brought by Oilchart falls within the scope of the provisions of the NWF, and thus constitutes an element of the Netherlands insolvency legislation. However, if one applies the reasoning from the judgments in Nickel & Goeldner Spedition and NK, the action at issue may be brought by the creditors individually and the action may thus not have a direct link with insolvency proceedings.

51.      Nonetheless, in order to take into account the legal and economic consequences of the insolvency exception and, in particular, of the common pool problem, the Court should apply the first criterion in a way which preserves both the exclusive jurisdiction of the insolvency court (52) and the interests of the other creditors, and avoids forum shopping. (53) Therefore, when the claim at issue in the main proceedings and in the insolvency proceedings is identical, the Court should consider examining whether it falls within the insolvency proceedings.

52.      In that respect, in so far as the Court held in the judgment in Riel that an action for a declaration of the existence of claims provided for by national legislation is intended to be brought in the context of insolvency proceedings, is closely connected with them and has its origin in the insolvency proceedings, (54) that assessment should be applied mutatis mutandis to the exercise of a creditor’s right for payment, like that at issue in the main proceedings.

53.      Furthermore, it may be pointed out that, in the judgment in H, (55) the Court ruled that the fact that an action can ‘theoretically … be brought even where no insolvency proceedings concerning the assets of the debtor company have been opened, … this fact per se does not preclude such an action being characterised as an action which derives directly from insolvency proceedings and is closely connected with them, providing that that action was actually brought in the context of insolvency proceedings’. Such claims ‘derogate’ from the general rules of civil and commercial law specifically because of the debtor’s state of insolvency. It follows that the distinguishing feature lies in the declaration of the debtor’s bankruptcy. (56) When the debtor is declared insolvent and the action seeks the recovery of a claim which falls within the estate in the insolvency proceedings, the legal basis of that claim becomes a provision of the insolvency legislation of the lex concursus and that action must be characterised as an action which derives directly from insolvency proceedings.

54.      I would add that, quite logically, most claims which fall within the insolvency estate have their source in the ordinary rules of civil and commercial law, especially when, like in the present case, they involve the enforceability of a contractual obligation to pay for a supply of goods. In other words, when a claim falls within the insolvency estate due to the opening of insolvency proceedings and the submission of a claim to the liquidator, it comes under the derogating rules of those proceedings. Otherwise, all claims of a civil and commercial nature that have been submitted to a liquidator could be claimed before another court in another Member State, rendering the principles of centralisation of the claims and of vis attractiva concursus meaningless. (57)

55.      Therefore, in my view, if the Court adopts a result-oriented approach for the first criterion (the legal basis test), it will enforce the rule of exclusive jurisdiction set out in Article 3(1) of the Insolvency Regulation, (58) thereby increasing the effectiveness of the insolvency proceedings and contributing to the achievement of the objective of avoiding forum shopping. (59) I would thus regard the ‘legal basis’ test as a test by which the Court establishes whether the origin of the obligation falls within the insolvency estate.

56.      Accordingly, I take the view that the scope of OWB NL’s obligations, together with Oilchart’s corresponding rights, form the legal basis of the claim. The enforcement of that claim is dependent on the application of provisions of Netherlands insolvency law as to the effect of the insolvency declared in the Netherlands. (60) I would therefore advise the Court to conclude that Oilchart’s claim derives directly from the insolvency proceedings and has its legal basis in a claim which falls within the insolvency estate.

(b)    Second criterion: the closeness of the link between that action and the insolvency proceedings

57.      As regards the second criterion, in order to determine whether an action is closely connected with insolvency proceedings, according to the formula adopted by the Court, it is the closeness of the link between that action and the insolvency proceedings that is decisive. (61) That criterion thus allows account to be taken of contextual factors other than those relating to the legal basis.

58.      In principle, the second criterion seeks to answer the question whether an action similar to that at issue may be brought at the same time as, or independently of, insolvency proceedings. For instance, in the judgment in German Graphics Graphische Maschinen, the Court held that an action brought on the basis of a reservation of title clause against an insolvency administrator did not have a sufficiently close link with insolvency proceedings on the ground, in essence, that the question of law raised in such an action was independent of the opening of insolvency proceedings. (62) More recently, in the judgment in Feniks, the Court held that an actio pauliana, whereby a creditor requests that an act by which his or her debtor has transferred an asset to a third party and which is allegedly detrimental to his or her rights be declared ineffective in relation to the creditor, was not connected with insolvency proceedings. (63) In the present case, if the Court were to apply such a ‘possibility test’, it would have to hold that the action at issue was independent of the insolvency proceedings, since it may be brought independently of any insolvency proceedings, unless the law on insolvency proceedings provides for a stay thereof.

59.      In the same vein, at times the Court looks at the procedural context by examining whether the creditor pursues a collective or an individual interest. For instance, in the judgment in F-Tex, the parties argued that the origin and content of the action brought by the assignee are, in essence, the same as those of an action to set a transaction aside brought by the liquidator. (64) Nevertheless, the Court reasoned that ‘the exercise of the right acquired by an assignee is subject to rules other than those applicable in insolvency proceedings’. (65) First, unlike the liquidator, who is, as a rule, required to act in the interest of the creditors, the assignee can freely decide whether to exercise the right of claim he or she has acquired. Second, the assignee, when he or she decides to exercise his or her right of claim, acts in his or her own interest and for his or her personal benefit. The Court ruled that the action in the main proceedings was therefore not closely connected with the insolvency proceedings. (66) If the Court were to apply those considerations to the main case, it would have to conclude that the exercise of the right acquired by Oilchart was subject to rules other than those applicable in insolvency proceedings; Oilchart – unlike a liquidator – remains free to decide whether it exercises that right and acts in its own interest. Therefore, its action is not closely connected with the insolvency proceedings.

60.      A more result-oriented approach was taken in the judgment in Valach, in which the Court examined the extent of the obligations of the committee of creditors rejecting a restructuring plan. In particular, it held that, in order to ascertain whether the liability of the members of the committee of creditors could be engaged because of the rejection of the restructuring plan, it would be necessary to analyse in particular the extent of that committee’s obligations in the insolvency proceedings and the compatibility of the rejection with those obligations. That action was held to be sufficiently close to the insolvency proceedings. (67) Whilst that judgment does not explain the reasons why the Court reached that conclusion, in my view, its approach can be explained by the need to take into consideration the impact of the action on the estate and, in particular, the underlying obligation to preserve the assets which form part of the estate. Under that test, it should be concluded that, under the insolvency proceedings, Oilchart is prevented from collecting its proceeds. Therefore, it should be held the action at issue is sufficiently close to the insolvency proceedings.

61.      Finally, in the judgment in SCT Industri, the Court essentially looked at the nexus of the parties’ actions to the asset. It held that an action by a company which was the subject of insolvency proceedings to recover ownership of shares that had been sold to another company is closely linked with the insolvency proceedings, since the sale took place on the basis of insolvency provisions. The Court emphasised that the assets of the undertaking that was the subject of the insolvency proceedings increased following the sale of the shares at issue by the liquidator. (68) Likewise, in the present case, Oilchart’s actions clearly affect the estate. Thus, under that test, the action at issue is sufficiently close to the insolvency proceedings.

62.      In the light of the above, I have come to the conclusion that the Gourdain criteria should be interpreted in a way that takes into account the objective and raison d’être of the insolvency proceedings, namely the common pool problem and efficient asset-management. A narrow interpretation of those criteria leads to the possibility of circumvention by the creditor of the rules of insolvency proceedings, asset-grabbing and depletion of other creditors’ rights. That circumvention could take place due to the existence of multiple jurisdictions and the classification of the parallel action as a ‘civil and commercial’ action within the meaning of Article 1(1) of the Brussels Ia Regulation. To my mind, however, the application of the Brussels Ia Regulation cannot serve as a means of undermining the exclusive jurisdiction of the insolvency court, (69) the effectiveness of the insolvency proceedings (70) and the imperative of protecting the creditors’ interests. (71) Indeed, allowing the referring court to be competent under the Brussels Ia Regulation leads to circumvention of the efficient and effective operation of insolvency proceedings, which undermines the ‘proper functioning of the internal market’. (72) In the present case, since the claim at issue is identical to the one submitted to the insolvency liquidator in the Netherlands, I would advise the Court to hold that an action such as that at issue in the main proceedings derives directly from insolvency proceedings and is closely linked with them, so that it falls within the scope of the Insolvency Regulation.

63.      Accordingly, I propose that the Court’s answer be that Article 1(1) and Article 1(2)(b) of the Brussels Ia Regulation and Article 3(1) of the Insolvency Regulation must be interpreted as meaning that, where a court of a Member State is seised of insolvency proceedings for a claim concerning a contractual obligation to pay for a supply of goods and the same claim is the subject of an action against an insolvent company under those insolvency proceedings, that action falls within the scope of the Insolvency Regulation.

C.      Second question

64.      The second question is asked in the event that the Court answers the first question to the effect that the action at issue falls within the scope of the Insolvency Regulation.

65.      By its second question, the referring court asks whether Article 25(2) of the NFW is compatible with Article 3(1) of the Insolvency Regulation, in so far as that provision allows an action against the insolvent company, such as that at issue in the main proceedings, to be brought before the courts of a Member State other than that in which the insolvency was ordered.

66.      I should recall, at the outset, that it is not for the Court, in preliminary ruling proceedings, to rule on the compatibility of national law provisions with EU law. The Court confines its analysis to an interpretation of the provisions of EU law that will be of use to the national court, which has the task of determining, in fine, the compatibility of the national law provisions with EU law for the purposes of deciding the dispute in the main proceedings. (73)

67.      It is apparent from the order for reference that the parties to the main proceedings disagree on whether Article 25(2) of the NFW is the true basis of the action and on the correct interpretation of that provision. Therefore, as I have mentioned above, before ruling on the compatibility of that provision with EU law, it will be for the referring court to characterise the claim and to determine whether that provision may be the actual basis of the action at issue. (74)

68.      With respect to the compatibility of that provision with Article 3(1) of the Insolvency Regulation, as I have mentioned before, (75) the latter provision aims to identify the court that is competent to open insolvency proceedings. It therefore lays down a rule on international jurisdiction. (76) However, the Court has interpreted it in a manner that confers exclusive jurisdiction on the insolvency court. (77)

69.      In the present case, Article 25(2) of the NFW appears to state that a judgment against a bankrupt debtor is to have no legal force against the insolvency estate. Essentially, it appears to allow actions to be taken outside the estate, but states that those actions are not enforceable with respect to the insolvency estate.

70.      It follows that, by looking prima facie at the mere formulation of Article 25(2) of the NFW, that provision does not seem to fall within the scope of Article 3(1) of the Insolvency Regulation, since it does not deal with the ‘opening’ of ‘insolvency proceedings’, but simply allows unverifiable actions outside those proceedings. In any case, Article 25(2) of the NFW seems on the face of it to be in conformity with Article 3(1) of the Insolvency Regulation, since it does not have repercussions for the estate.

71.      Nevertheless, if the application of Article 25(2) of the NFW leads to a practice which allows for the circumvention of the insolvency proceedings and of the exclusive jurisdiction of the insolvency court, which is for the national court to ascertain, it may be considered in that case that the national measure has the effect of circumventing Article 3(1) of the Insolvency Regulation, and is therefore contrary to it.

72.      In that respect, the referring court should examine whether the application of Article 25(2) of the NFW leads to a legal or economic change in the creditors’ situation with respect to the insolvency estate or insolvency proceedings (for instance the status or rank of creditors or the composition of the estate). In that respect, it is important to note that ING contended at the hearing before the Court that Oilchart’s actions may have effects for the purposes of calling on the guarantees provided by the ship-owners or the P&I clubs, that is with respect to third parties. If, on the contrary, the application of that provision has no such effect, then the action before the referring court is ‘neutral’ with respect to those proceedings.

73.      In the light of all the foregoing, I propose that the Court answer the question referred to the effect that Article 3(1) of the Insolvency Regulation and the principle of exclusive jurisdiction must be interpreted as precluding national legislation or a national practice that has the effect of circumventing the exclusive jurisdiction of a court of a Member State which is first seised of insolvency proceedings for a claim concerning a contractual obligation to pay for a supply of goods which falls within the insolvency estate.

IV.    Conclusion

74.      On the basis of my analysis set out above, I propose that the Court answer the questions referred by the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium) as follows:

(1)      Article 1(1) and (2)(b) 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, and Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings,

must be interpreted as meaning that, where a court of a Member State is seised of insolvency proceedings for a claim concerning a contractual obligation to pay for a supply of goods, and the same claim is the subject of an action against an insolvent company under those insolvency proceedings, that action falls within the scope of Regulation No 1346/2000.

(2)      Article 3(1) of Regulation No 1346/2000 and the principle of exclusive jurisdiction

must be interpreted as precluding national legislation or a national practice that has the effect of circumventing the exclusive jurisdiction of a court of a Member State which is first seised of insolvency proceedings for a claim concerning a contractual obligation to pay for a supply of goods which falls within the insolvency estate.

1      Original language: English.

2      OJ 2012 L 351, p. 1.

3      That regulation replaced 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), which had itself replaced the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by successive conventions on the accession of new Member States to that convention (‘the Brussels Convention’).

4      OJ 2000 L 160, p. 1.

5      The Insolvency Regulation was replaced by Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19), which is not applicable ratione temporis to the present case.

6      It is alleged that, prior to that declaration of bankruptcy, ING had granted a loan to OWB NL, which, together with other group entities, had transferred to ING present and future claims against its final customers.

7      Article 28(1) of the Brussels Ia Regulation provides that, where a defendant domiciled in one Member State is sued before a court of another Member State and does not enter an appearance, the court is to declare of its own motion that it has no jurisdiction unless its jurisdiction derives from the provisions of that regulation.

8      While that provision contains the term ‘bankruptcy’, taking into account the Insolvency Regulation and Regulation 2015/848, it is clear that the term ‘insolvency’ is in the present context more appropriate and I shall refer to it in this Opinion. See also Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (OJ 2019 L 172, p. 18).

9      The Court’s file contains the term ‘bankruptcy’. Therefore, in this Opinion, I shall refer to that term when describing the circumstances of the case or Netherlands law. However, the term ‘insolvency’ shall be in the context of EU law, since the Insolvency Regulation and Regulation 2015/848 both refer to insolvency proceedings.

10      The fact that it was an identical claim – in that the invoice and the amount were the same – was confirmed by ING, a creditor of OWB NL, at the hearing before the Court.

11      Judgments of 21 September 2016, Etablissements Fr. Colruyt (C‑221/15, EU:C:2016:704, paragraph 15) and of 5 June 2018, Grupo Norte Facility (C‑574/16, EU:C:2018:390, paragraph 32).

12      See, in particular, judgment of 14 November 2018, Wiemer & Trachte (C‑296/17, EU:C:2018:902, paragraph 23).

13      Eidenmuller, H., ‘What is an insolvency proceeding?’, American Bankruptcy Law Journal, 92(1), 2018, pp. 53 to 72.

14      The most influential bankruptcy theory, the Creditors’ Bargain Theory, views insolvency as a common pool problem, and accordingly insolvency law as a set of special rules to overcome that problem. The common pool problem posed by insolvency is that creditors all have claims against the company, whose assets are insufficient to satisfy all the claims. Accordingly, insolvency relies on the idea that a better process would be to prevent individual enforcement action and to distribute the debtor’s assets in some fair way between the creditors. A collective process is preferable (see Jackson, T., The Logic and Limits of Bankruptcy Law, Beard Books, 2001, p. 11 et seq.).

15      See, by way of analogy, UNCITRAL Legislative Guide on Insolvency Law (United Nations 2005, p. 83, paragraph 26), which states that ‘one of the fundamental principles of insolvency law is that insolvency proceedings are collective proceedings, which require the interests of all creditors to be protected against individual action by one of them’.

16      In that respect, it is important to note that the referring court emphasises that the action at issue has ‘repercussions for the estate’, particularly since it is an action aimed at circumventing the distribution of the total assets or at reducing the amount thereof.

17      As explained by ING in its written submissions and at the hearing, if Oilchart’s claim were upheld by the Belgian courts, it could obtain a payment from ING, which would remove from the Netherlands estate the claim to which it was subject in the Netherlands insolvency proceedings.

18      See Article 16(1) of the Insolvency Regulation. The Court has held that the rule of priority laid down in that provision is based on the principle of mutual trust. It is indeed that mutual trust which has enabled not only the establishment of a compulsory system of jurisdiction which all the courts within the purview of the Insolvency Regulation are required to respect, but also as a corollary the waiver by the Member States of the right to apply their internal rules on recognition and enforcement in favour of a simplified mechanism for the recognition and enforcement of judgments handed down in the context of insolvency proceedings (see judgment of 5 July 2012, ERSTE Bank Hungary, C‑527/10, EU:C:2012:417, paragraph 34).

19      See, by way of analogy, Article 29(1) of the Brussels Ia Regulation. See also, for example, Directive 2019/1023, which defines in Article 2(1)(4) thereof a ‘stay of individual enforcement actions’ as ‘a temporary suspension, granted by a judicial or administrative authority or applied by operation of law, of the right of a creditor to enforce a claim against a debtor and, where so provided for by national law, against a third-party security provider, in the context of a judicial, administrative or other procedure, or of the right to seize or realise out of court the assets or business of the debtor’.

20      The ‘principle of unity’ means that there is a single set of insolvency proceedings. The ‘principle of universality’ means that those proceedings extend to all the debtor’s assets, wherever they may be situated. In that respect, I should note that the Insolvency Regulation is based on the distinction, set out in Article 3 thereof, between the main (universal) proceedings  and the secondary (territorial) proceedings (see judgment of 2 May 2006, Eurofood IFSC, C‑341/04, EU:C:2006:281, paragraph 28). See also judgment of 14 November 2018, Wiemer & Trachte (C‑296/17, EU:C:2018:902, paragraph 40).

21      In that respect, it should be noted that the Insolvency Regulation ‘enables the main insolvency proceedings to be opened in the Member State where the debtor has the centre of his main interests’ and specifies that ‘these proceedings have universal scope and aim at encompassing all the debtor’s assets’. See recital 12 of the Insolvency Regulation. According to Advocate General Szpunar (Opinion in Senior Home, C‑195/15, EU:C:2016:369, point 21), the Insolvency Regulation is based not on a model constructed according to the principle of the universality of insolvency proceedings, but on a model of qualified universality (also called ‘modified universality’), since the point of departure for the regulation is the universal model, but the regulation then lays down a series of special rules which operate as exceptions and which adjust or qualify its universality.

22      See point 31 above.

23      For instance, in the judgment of 16 January 2014, Schmid (C‑328/12, EU:C:2014:6, paragraph 39), the Court held that the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction to hear and determine an action to set a transaction aside by virtue of insolvency. See also Explanatory report of M. Virgós and E. Schmit on the Convention on Insolvency Proceedings of 3 May 1996, document of the Council of the European Union, 6500/96, DRS 8 (CFC), paragraph 3.

24      It follows from recitals 2 and 8 of Regulation No 1346/2000 that its purpose is to enable cross-border insolvency proceedings to operate efficiently and effectively and to improve and expedite them.

25      Judgment of 12 February 2009 (C‑339/07, EU:C:2009:83, paragraph 22).

26      See also recitals 8 and 16 of the Insolvency Regulation.

27      See, by way of analogy, on the aims to ensure efficient and effective cross-border insolvency proceedings, judgment of 22 November 2012, Bank Handlowy and Adamiak (C‑116/11, EU:C:2012:739, paragraph 62).

28      See Article 4(1) and Article 16 of the Insolvency Regulation.

29      In that respect, the Court has highlighted the application of the principle of mutual trust, which requires that the courts of the other Member States recognise the decision opening such proceedings, without being able to review the assessment made by the first court as to its jurisdiction (see, by analogy, judgment of 2 May 2006, Eurofood IFSC, C‑341/04, EU:C:2006:281, paragraph 42).

30      Judgment of 18 September 2019, Riel (C‑47/18, EU:C:2019:754, paragraph 42).

31      See, to that effect, judgment of 20 June 2022, London Steam-Ship Owners’ Mutual Insurance Association (C‑700/20, EU:C:2022:488, paragraphs 43 and 69). I would add that, since the Court held that the lis pendens rule applies to the exception contained in Article 1(2)(d) of Regulation No 44/2001, then, mutatis mutandis, the same conclusion should be drawn in relation to the exception contained in Article 1(2)(b) of the Brussels Ia Regulation.

32      See points 34 to 37 above.

33      See, by way of analogy, judgment of 1 March 2005, Owusu (C‑281/02, EU:C:2005:120, paragraphs 31 to 42), where the Court highlighted the principles of legal certainty, the protection of persons established in the European Union and the uniform application of the rules on jurisdiction, recalling that ‘the objective of the Brussels Convention is precisely to lay down common rules to the exclusion of derogating national rules’. For uniform application of the Insolvency Regulation, see judgment of 16 April 2015, Lutz (C‑557/13, EU:C:2015:227, paragraph 48).

34      Judgment of 22 February 1979 (133/78, EU:C:1979:49).

35      Judgment of 12 February 2009 (C‑339/07, EU:C:2009:83, paragraph 20).

36      See, to that effect, judgment of 18 September 2019, Riel (C‑47/18, EU:C:2019:754, paragraph 34 and the case-law cited).

37      It should be pointed out that that approach was confirmed when those criteria were codified by Article 6 of Regulation 2015/848, whereby the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction for any action which derives directly from the insolvency proceedings and is closely linked with them.

38      See, inter alia, judgment of 10 September 2009, German Graphics Graphische Maschinen (C‑292/08, EU:C:2009:544, paragraph 23).

39      Garcimartin, F., ‘Insolvency-Related Judgments and Vis Attractiva Concursus: The EU Approach’, Insolvency Intelligence 1 (2018). See Report by Virgós, M. and Schmit, E., cited in footnote 23, paragraph 77.

40      See Advocate General Bobek’s criticism on the application of those criteria in his Opinion in NK (C‑535/17, EU:C:2018:850, points 44 to 53).

41      See, for example, judgments of 4 December 2019, Tiger (C‑493/18, EU:C:2019:1046), and of 20 December 2017, Valach and Others (C‑649/16, EU:C:2017:986).

42      See Opinion of Advocate General Bobek in NK (C‑535/17, EU:C:2018:850, points 44 to 46).

43      See, for instance, judgment of 18 September 2019, Riel (C‑47/18, EU:C:2019:754, paragraph 37).

44      See, to that effect, judgment of 21 November 2019, CeDe Group (C‑198/18, EU:C:2019:1001, paragraphs 31 and 32).

45      See, to that effect, judgment of 9 November 2017, Tünkers France and Tünkers Maschinenbau, (C‑641/16, EU:C:2017:847, paragraph 22 and the case-law cited).

46      Ibid. See also judgments of 6 February 2019, NK (C‑535/17, EU:C:2019:96, paragraph 28), and of 18 September 2019, Riel (C‑47/18, EU:C:2019:754, paragraph 36).

47      See judgment of 4 September 2014, Nickel & Goeldner Spedition (C‑157/13, EU:C:2014:2145, paragraph 26).

48      See judgment of 18 September 2019 (C‑47/18, EU:C:2019:754, paragraph 37).

49      See, to that effect, judgment of 4 December 2019, (C‑493/18, EU:C:2019:1046, paragraphs 30 and 31).

50      See judgment of 4 September 2014 (C‑157/13, EU:C:2014:2145, paragraph 28). The Court went on to add that ‘the fact that, after the opening of insolvency proceedings against a service provider, the action for payment is taken by the insolvency administrator appointed in the course of those proceedings and that the latter acts in the interest of the creditors does not substantially amend the nature of the debt relied on which continues to be subject, in terms of the substance of the matter, to the rules of law which remain unchanged’.

51      See judgment of 6 February 2019, NK (C‑535/17, EU:C:2019:96, paragraphs 35 and 36). See also judgment of 10 September 2009, German Graphics Graphische Maschinen (C‑292/08, EU:C:2009:544, paragraph 31). In the latter judgment, however, it remained unclear whether the test of ‘independency’ related to the first or the second criterion.

52      See point 29 above.

53      See point 35 above.

54      Judgment of 18 September 2019 (C‑47/18, EU:C:2019:754, paragraphs 33 to 40).

55      Judgment of 4 December 2014 (C‑295/13, EU:C:2014:2410).

56      Conversely, in its judgment of 6 February 2019, NK (C‑535/17, EU:C:2019:96), the Court found that the fact that the claim may be brought also by the creditors individually, whether before, during, or after the conduct of the insolvency proceedings, made it fall under the Brussels Ia Regulation. Why the Court found this relevant in NK, but not in its judgment of 4 December 2014, H (C‑295/13, EU:C:2014:2410), remains unclear. See, to that effect, Bork, R., and van Zwieten, K. (eds), ‘Jurisdiction for actions which derive directly from the insolvency proceedings and are closely linked with them’, in Bork, R., and van Zwieten, K. (eds), Commentary on the European Insolvency Regulation, 2nd ed., Oxford University Press, Oxford, 2022, pp. 221 to 243; online ed., Oxford Academic, 19 May 2022).

57      I therefore disagree with the Commission’s argument that the action at issue is separate from the insolvency proceedings because it is subject, on the substance, to rules of ordinary law.

58      See point 29 above.

59      See point 35 above.

60      Under Article 4(1) of the Insolvency Regulation, the effects of insolvency proceedings are to be determined by the law of the Member State within the territory of which insolvency proceedings are opened. In the present case, the effects of the insolvency fall under Netherlands law.

61      See judgments of 2 July 2009, SCT Industri (C‑111/08, EU:C:2009:419, paragraphs 22 to 25); of 9 November 2017, Tünkers France and Tünkers Maschinenbau (C‑641/16, EU:C:2017:847, paragraph 28 and the case-law cited); and of 6 February 2019, NK (C‑535/17, EU:C:2019:96, paragraph 30).

62      Judgment of 10 September 2009 (EU:C:2009:544, paragraphs 30 and 31).

63      Judgment of 4 October 2018 (C‑337/17, EU:C:2018:805, paragraph 32).

64      Judgment of 19 April 2012 (C‑213/10, EU:C:2012:215). The Court even admitted that ‘it cannot be denied that the right on which the applicant in the main proceedings bases its action is linked with the insolvency of the debtor as it has its origin in the right to have a transaction set aside conferred on the liquidator by the national law applicable to insolvency proceedings’.

65      See paragraph 42 of that judgment.

66      See judgment of 19 April 2012, F-Tex (C‑213/10, EU:C:2012:215, paragraphs 41 to 47).

67      Judgment of 20 December 2017, Valach and Others (C‑649/16, EU:C:2017:986, paragraph 38).

68      Judgment of 2 July 2009 (C‑111/08, EU:C:2009:419, paragraphs 26 to 29).

69      See point 29 above.

70      See point 35 above.

71      See point 34 above.

72      See recital 2 of the Insolvency Regulation.

73      See, to that effect, judgment of 17 March 2021, Consulmarketing (C‑652/19, EU:C:2021:208, paragraph 33 and the case-law cited).

74      See points 25 and 26 above.

75      See point 23 above.

76      Judgment of 16 January 2014, Schmid (C‑328/12, EU:C:2014:6, paragraph 27).

77      See point 29 above.