Case C-213/10

F-Tex SIA

v

Lietuvos-Anglijos UAB ‘Jadecloud-Vilma’

(Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas)

‛Judicial cooperation in civil matters — Regulation (EC) No 1346/2000 — Article 3(1) — Concept of an action related to insolvency proceedings and closely connected with those proceedings — Regulation (EC) No 44/2001 — Article 1(1) and (2)(b) — Concepts of civil and commercial matters and of bankruptcy or winding-up — Action brought on the basis of an assignment, by a liquidator, of his right to have a transaction set aside’

Summary of the Judgment

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Scope — Civil and commercial matters — Concept

(Council Regulations No 1346/2000 and No 44/2001, Art. 1(1) and (2)(b))

Article 1(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action brought against a third party by an applicant acting on the basis of an assignment of claims which has been granted by a liquidator appointed in insolvency proceedings and the subject-matter of which is the right to have a transaction set aside that the liquidator derives from the national law applicable to those proceedings is covered by the concept of civil and commercial matters within the meaning of that provision.

Article 1(2)(b) of Regulation No 44/2001 excludes from the scope of that regulation only actions which derive directly from insolvency proceedings and are closely connected with them, as those actions are covered by Regulation No 1346/2000 on insolvency proceedings. Those characteristics are not present in a case in which the right on which the applicant bases its action is, it is true, linked with the insolvency of the debtor inasmuch 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, but in which, however, the exercise of the right acquired by an assignee is subject to rules other than those applicable in insolvency proceedings.

Such a difference in rules exists when, first, the assignee can freely decide whether to exercise the right of claim he has acquired and, second, the assignee, when he decides to exercise his right of claim, acts in his own interest and for his personal benefit. Like the right of claim which serves as the basis for his application, the proceeds of the action which he brings become owned by him personally. The consequences of his action are therefore different from those of an action to set a transaction aside brought by a liquidator, which is intended to increase the assets of the undertaking which is the subject of insolvency proceedings.

Furthermore, a difference between the rules applicable in such a case and those which apply in insolvency proceedings also exists when the closure of the insolvency proceedings has no effect on the exercise by the assignee of the right to have a transaction set aside which he has acquired and when that right may be exercised by the assignee after the closure of the insolvency proceedings.

(see paras 29, 40, 42-44, 46, 49, operative part)

Case C-213/10

F-Tex SIA

v

Lietuvos-Anglijos UAB ‘Jadecloud-Vilma’

(Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas)

‛Judicial cooperation in civil matters — Regulation (EC) No 1346/2000 — Article 3(1) — Concept of an action related to insolvency proceedings and closely connected with those proceedings — Regulation (EC) No 44/2001 — Article 1(1) and (2)(b) — Concepts of civil and commercial matters and of bankruptcy or winding-up — Action brought on the basis of an assignment, by a liquidator, of his right to have a transaction set aside’

Summary of the Judgment

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Scope — Civil and commercial matters — Concept

(Council Regulations No 1346/2000 and No 44/2001, Art. 1(1) and (2)(b))

Article 1(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action brought against a third party by an applicant acting on the basis of an assignment of claims which has been granted by a liquidator appointed in insolvency proceedings and the subject-matter of which is the right to have a transaction set aside that the liquidator derives from the national law applicable to those proceedings is covered by the concept of civil and commercial matters within the meaning of that provision.

Article 1(2)(b) of Regulation No 44/2001 excludes from the scope of that regulation only actions which derive directly from insolvency proceedings and are closely connected with them, as those actions are covered by Regulation No 1346/2000 on insolvency proceedings. Those characteristics are not present in a case in which the right on which the applicant bases its action is, it is true, linked with the insolvency of the debtor inasmuch 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, but in which, however, the exercise of the right acquired by an assignee is subject to rules other than those applicable in insolvency proceedings.

Such a difference in rules exists when, first, the assignee can freely decide whether to exercise the right of claim he has acquired and, second, the assignee, when he decides to exercise his right of claim, acts in his own interest and for his personal benefit. Like the right of claim which serves as the basis for his application, the proceeds of the action which he brings become owned by him personally. The consequences of his action are therefore different from those of an action to set a transaction aside brought by a liquidator, which is intended to increase the assets of the undertaking which is the subject of insolvency proceedings.

Furthermore, a difference between the rules applicable in such a case and those which apply in insolvency proceedings also exists when the closure of the insolvency proceedings has no effect on the exercise by the assignee of the right to have a transaction set aside which he has acquired and when that right may be exercised by the assignee after the closure of the insolvency proceedings.

(see paras 29, 40, 42-44, 46, 49, operative part)