Professor Augustin FUEREA, PhD
Faculty of Law, “Nicolae Titulescu” University of Bucharest,
Member of the Scientific Council of INPPI
LL. D. Andreea DELI
Member of the Governing Board of INPPI
Abstract
The need to have Union-wide uniform national legal systems continues to be one of the toughest challenges facing the Member States. In terms of insolvency, this need was answered by the evolution of Regulation (EC) 1346/2000 on insolvency proceedings into the Regulation (EU) 2015/848 on insolvency proceedings. More recently, the publication of Directive (EU) 2019/1023 on restructuring frameworks and insolvency is the proof that the efforts to create a global architecture of restructuring proceedings and the related instruments were not in vain. The case law of the Court of Justice of Luxembourg outlined some material arguments and notions and proved a long time, by clearly setting forth some legal structures meant to protect the EU law, the vulnerability potential of insolvency-related regulations. The actions for voidance of some documents or operations executed during the pre-insolvency proceedings represent such a segment. However, this is not the only one and this report attempts at proving so in that it supports the uniformizations endeavors, in particular in light of the strategic/critical role which insolvency came to occupy in terms of efficiency and impact on the economic phenomena.
Keywords: Regulation (EU) 2015/848, Directive (UE) 2019/1023, uniformization, insolvency, restructuring proceedings, avoidance actions, prejudicial acts, forum shopping
- Preliminary remarks
It is obvious that the “Lisbon moment” has been, and continues to be, a significant stage in the developments the European Union has had. These developments have resulted, first of all, in the European Union’s acquisition of its legal personality[1], a personality which confers it the opportunity to establish specific legal relations (assuming rights and obligations) either with the Member States or with third States, acting independently in the field of international relations (including of an economic nature).
Thus, according to Article 21 para. (2) of the Treaty on European Union (TEU), “the Union shall define and pursue joint policies and actions and shall act to ensure a high level of cooperation in all areas of international relations” in order to achieve a number of goals. Among these purposes, we consider that three are relevant to our approach. We refer, first of all, about the purpose referred to in subparagraph d) of Article 21 para. (2), in the sense of “promoting sustainable economic, social and environmental development (...)”. Second of all, in subparagraph e) there is a reference to encouraging “the integration of all countries into the world economy, including through the gradual removal of barriers to international trade”. Thirdly, and, in our opinion, the most significant, it draws the attention, theory and practice of the field, the purpose mentioned in para. h) of the same article, respectively paragraph, with direct reference to the promotion of “an international system based on stronger multilateral cooperation and good global governance”.
Corroborated with the above information, established in the fundamental legislation of the European Union (Treaty on the European Union and Treaty on the Functioning of the European Union – post Lisbon 2007/2009), we consider as edifying for our analysis on the need to standardize, but also to comply with the conduct of Member States and economic operators, implicitly, are also those aspects related to the distribution of competences at European Union level[2]. In this respect, areas of economic relevance are mostly placed under the exclusive competence of the EU[3], under the competence shared between the European Union and the Member States respectively[4].
This is method chosen that has proved possible and required to switch from Regulation (EC) No. 1346/2000 on insolvency proceedings[5] to Regulation (EU) 2015/848 on insolvency proceedings[6], but not only.
The European Commission’s proposal for a Directive[7] on preventive restructuring frameworks, discharge of debt and disqualifications, as well as measures to increase the efficiency of restructuring, insolvency and discharge of debt procedures concerning restructuring and insolvency[8] (hereinafter referred to as the Directive on restructuring frameworks and insolvency, or the Directive) was registered[9] on 22 November 2016. This is the first initiative of the European Commission to structurally standardize the complicated architecture of Member States’ insolvency law, with a strong impact on the developments in the economic environment[10].
It is relevant, from the point of view of the systemic character assigned to the need to standardize this legislative component within the European Union, is the very need to reduce “the most significant barriers against the free movement of capital arising from the differences in the legal frameworks of the Member States in the field of restructuring and insolvency” [11].
However, at the deep level of the impact that the phenomenon of insolvency has generated and continues to generate at Union’s level[12], it has been taken into account that “the inefficiency of national insolvency frameworks and the differences between these frameworks generate legal uncertainty, obstacles to the recovery of claims by creditors and barriers to the efficient restructuring of viable companies in the EU, including for cross-border groups” [13].
The Directive on restructuring frameworks and insolvency is a first and decisive step taken by the Member States, nevertheless we consider that there is a more significant need than that[14]. In the same order of ideas, after the adoption of the Directive, the academic environment has expressed the view that Member States have tried, and ultimately succeeded, to remain consistent with the national specificities of their legal systems[15].
The insolvency, in addition to being considered a legal instrument intended to save or, on the contrary, to eliminate debtors in difficulty from the economy or even in financial deadlock, is the area in which the law interferes most with the economic phenomenon[16].
Thence, given the need to identify uniform, correlated and integrated mechanisms that provide an expected level of predictability to the participants in complex cases of restructuring and insolvency at union level, the solutions provided by the Court of Justice of the European Union (CJEU) is a more than required research approach.
The purpose of analyzing such solutions of the Luxembourg Court, which have crystallized, over time, substantive reasoning, is determined by the need to understand the subject matter of restructuring and insolvency as a special matter, derogating from the ordinary law. Moreover, such solutions provide, in turn, arguments per se, able of convincing regarding the risks existing in relation to the maintenance of substantial differences between the systems of law incidental to that field[17].
Although the solutions of the Court of Justice of the EU have taken into account the interpretation and application of the Union law, however, through the correlations made in the argumentative structure, through the parallelism taken into account between the substantive (national) law of a Member State and the EU legal acts, the Court has formulated principles which, mutatis mutandis, are the key elements in the need for uniformity[18].
In this context, the motivation that the CJEU promoted in the Seagon judgment[19], underlaying the amendments to Regulation (EU) 2015/848 on insolvency proceedings, must be taken into account[20]. Thus, the Court considered that the regulation “confers (...) an international jurisdiction of the Member State on whose territory the insolvency proceedings have been commenced [including] for the adjudication of actions arising directly from those proceedings and closely related to it. Such a concentration of all actions relating directly to the insolvency of a [company] brought before the courts of the Member State competent to open insolvency proceedings also appears consistent with the objective of improving efficiency and speeding up insolvency proceedings” [21].
The criterion established by the European Union court, in relation to the “effect of the concentration of actions directly related to the insolvency procedure” also substantiated the motivation of the High Court of Cassation and Justice in its decision no. 17/20.07.2020 pronounced in an appeal in the interest of the law in the matter of the competences of the syndic judge[22].
Moreover, the transposition of that reasoning of the Court of Justice of the EU into the content of Regulation (EU) 2015/848 is to be found in recital (35) itself[23].
- Qualification of the legal regime of the law subject to an action in implementation
Relevant to our approach is the judgment of the Luxembourg court in Case SCI Senior Home v. Gemeinde Wedemark, Hannoversche Volksbank eG [24], which is the subject of further analysis.
The law issue arises from the possibility of the applicability or non-applicability of the suspension of foreclosure (in this case, a suspension governed by the national provisions of French law, where the insolvency proceedings have been commenced against the debtor Senior Home) in respect of an asset belonging to the debtor Senior Home, which was located in Germany, a State where the substantive law considers unpaid taxes as “rights in rem”.
Article 5 of Regulation (EC) Regulation (EC) No 1346/2000 on insolvency proceedings, entitled “Rights in rem of third parties”, provided that: “the commencement of insolvency proceedings shall not affect the rights in rem (underlined by us) of a creditor or third party over tangible or intangible, movable or real estate property – both individually determined assets and constituted in universalities whose composition may change – belonging to the debtor and which are on the territory of another Member State at the time of the commencement of the of the procedure”.
In settling the case, the Court relied on the following legal arguments: according to the provisions of Regulation (EC) No 1346/2000, the insolvency proceedings commenced against the debtor Senior Home are subject to French law. Under the French law, the commencement of judicial reorganization proceedings would, in essence, prevent the forced sale in respect of the property located in Germany. On the other hand, under that regulation, the commencement of insolvency proceedings cannot affect the rights in rem of a creditor or third party over assets belonging to the debtor who are located in the territory of another Member State.
The German Land Tax Act, classified as “Tangible security”, provides that “land tax is a public obligation over the taxable asset”.
By its judgment, the Court allowed the foreclosure, in the territory of the German State, of real estate property belonging to the assets of a debtor, which was under reorganization proceedings, in France, since the substantive law of the German State classifies the unpaid tax on a real estate property as a right in rem and not as a claim. Thus, according to the Court, “Regulation (EC) No 1346/2000 is based on the principle of equal treatment of creditors and that its provisions must be applied regardless of the nature, whether commercial or otherwise, of claims guaranteed by rights in rem. Therefore, as regards the possibility for creditors to register in writing their claims in insolvency proceedings, (...) the Regulation excludes any discrimination on the part of the tax bodies and social security bodies of Member States other than the State in whose territory insolvency proceedings have been commenced. As such, the question that must be answered is whether the Article [on the rights in rem of third parties] of Regulation (EC) No 1346/2000 must be construed as representing a “right in rem” as provided by the [Regulation] as a guarantee established under a provision of national law, such as that at issue in the main litigation, according to which the real estate property of the land tax debtor is automatically encumbered by a public burden and that owner must tolerate the foreclosure over that real estate property for which the tax claim is being established?”[25].
The solution ordered for this case confirms that the exceptions to the procedural rule on the suspension of foreclosure, which is essential in the matter of restructuring and insolvency, must be complied with, but such exceptions may consist in the legal characterization which the substantive law of each Member State awards in respect of rights in rem or claims. By comparison, what national insolvency law qualifies as a claim right or, at most, a preferential legal cause[26] in French law is regulated as a right in rem.
The difference is a substantial, because it generates different effects in relation to the legal characterization of the right under consideration.
- Inadmissibility of revocatory actions in insolvency matters. The risk of forum shopping
The analysis that we are developing further, starting from the Ruling Nike European Operations Netherlands BV v. Sportland Oy[27], has as its starting point the fact that these actions, which can be considered a vulnerable spot of trust with which the participants in the legal circuit relate to the future insolvent debtor, are considered essential for this matter.
Such actions are referred to in the legal literature as “avoidance actions” [28] and are aimed at the annulment or revocation of acts or operations carried out before the commencement of insolvency proceedings. It is precisely in view of this vulnerability that the Restructuring Frameworks Directive provided for a high level of protection, in Article 18, for financing granted for the purpose of restructuring. In this respect, “Member States shall ensure that, in the event of a debtor’s subsequent insolvency, transactions which are reasonable and immediately required for the negotiation of a restructuring plan are not declared void, voidable or exempt from foreclosure on the grounds that such transactions are detrimental to the insolvency estate, unless other additional grounds provided for by national law are present”.
Returning to the question of law examined by the Court of Justice of the EU in the Case Sportland Oy[29], it takes into account the situation in which, in an action for the restitution of payments made prior to insolvency, the law of the Member State governing the act itself applies, but which does not allow “in any case, to challenge the act (underlined by us)”.
According to the provisions of Regulation (EC) No 1346/2000, the article relating to the fact that the law of the state of the commencement determines the conditions for commencing, conduct and closure of insolvency proceedings, which shall determine, in particular, the rules on the nullity, annulment or unenforceability of acts detrimental to the creditors’ meeting[30] “shall not apply if the person who has acquired benefits as a result of an act detrimental to the creditors’ meeting proves that: (i) that act is subject to the law of another Member State other than that of the state in which the proceedings were commenced and (ii) that law does not, in any case, allow an appeal to be brought against the act”.[31]
The facts were as follows: Sportland, a company governed by the Finnish law, sold products supplied by Nike, a company established in the Netherlands, under a franchise agreement. According to that agreement, which was subject to the Netherlands law, Sportland paid Nike debts which reached maturity for the purchase of stocks provided for in that agreement. In 2009, the commencement of insolvency proceedings against Sportland was ordered. The trustee in bankruptcy of the latter company brought a bankruptcy revocatory action seeking the annulment of the payments and ordering Nike to repay the amounts paid, as well as to pay the interest, according to the provisions of the Law on the reinstatement of the bankruptcy assets. Nike argued that the action should be dismissed, relying on Article 13 of Regulation (EC) No 1346/2000, determining that the payments challenged were covered by the Dutch law. However, under the Insolvency Law, those payments could not have been annulled.
Regarding that situation, the Court has decided that, indeed, if the law of the Member State governing the agreement between the parties does not allow it to be annulled in insolvency proceedings, an action to set transactions aside seeking the repayment of payments is inadmissible, but the burden of proof as to whether it is impossible to cancel payments lies with the Respondent in the action for annulment.
In this respect, the main considerations of the Court were as follows:
- the article relating to harmful acts of Regulation (EC) No 1346/2000 “must be construed as meaning that its application is subject to the condition that the act in question cannot be challenged under the law applicable to that act (lex causae), taking into account all the circumstances of the case[32]”.
- “for the purposes of the application of [the provisions relating to harmful acts] – and in the event that the Respondent in an action for ascertaining the nullity, an action for annulment or an action for a declaration of the unenforceability of an act relies on a provision of the law applicable to that act (lex causae) according to which that act is open to challenge only in the circumstances provided for in that provision, lies with the Respondent to refer to the absence of those circumstances and to bring evidence to that effect”.[33]
- the article of Regulation (EC) No 1346/2000 which concerns the aspects of detrimental acts “must be construed as meaning that [the expression] “does not allow (...), in any case, to challenge that act” refers, in addition to the provisions of the law applicable to that act (lex causae) applicable to insolvency matters, to all the provisions and general principles of that law[34]. [That article] must be construed as meaning that the Respondent in an action for ascertaining the nullity, an action for annulment or an action for a declaration of the unenforceability of a measure must demonstrate that the law applicable to that act (lex causae), as a whole, does not make it possible to challenge that act. The national court that received such an action cannot consider that it is the responsibility of the Petitioner to prove the existence of a provision or principle of that law under which that measure may be challenged only where that court considers that the Respondent has actually proved, in the first instance, in view of the commonly applicable rules of its national procedural law, that, under the same law, the act in question is unassailable” [35].
The court’s ruling draws attention to the need of complying with the right of each Member State to regulate, at legislative level, the extent to which an agreement may be annulled or, lato sensu, terminated in the event of insolvency. In other words, the diversity of laws relating to acts or transactions relating to the period before the commencement of insolvency proceedings (“the suspect period”) may lead to the successful invocation of a legal, objective impediment to the exercise of those actions for annulment.
It is precisely such compliance with specific elements, which, however, creates an intangible regime with regards to certain acts or operations that are intended to affect the insolvency estate, that creates the need for uniformity.
Moreover, the existence at Member State level of such “legal causes of impunity” of the legal act in which the insolvent debtor took part may give rise to the premises of a real “forum shopping”, i.e. the debtor will be tempted to attract the insolvency jurisdiction of that or those jurisdictions which would not allow the act in question to be abolished.
Two other judgments of the Court of Justice in Luxembourg highlight and “refine” the rule on this true “admissibility analysis” with regard to actions for annulment.
Thus, in the first of those judgments, delivered in Vinyls Italia SpA v. Mediterranea di Navigazione SpA[36], the question was examined in the light of the procedural conditions under which it is required to examine the admissibility of actions for annulment.
The main dispute brought before the Tribunale Ordinario di Venezia was between Vinyls Italia, a bankrupt company established in Venice, and Mediterranea, which has its registered office in Ravena (Italy). The subject-matter of the dispute concerned an application for revocation in respect of two payments made in the context of the performance of a chartering agreement concluded in 2008, whose validity was extended by an Addendum of December 2009. Those payments, amounting to EUR 447,740.27, were made by Vinyls Italia to Mediterranea before the first of those companies was subject of a special management procedure which subsequently led to its bankruptcy.
Vinyls Italia’s liquidator argued that the payments at issue had been made with delays in the light of the contractual periods, at a time when it was well known that that company was insolvent and that those payments could be revoked, according to the Bankruptcy Act.
Mediterranea objected to the revocation, considering that those payments had been made in the context of the performance of an agreement which the parties had chosen to submit to English law. According to English law, which is decisive under Regulation (EC) No 1346/2000, the payments at issue cannot be challenged.
The preliminary question referred by the national court was intended to bring answers the following question:
- (i) the reference to the lex causae rule laid down in the article relating to harmful acts of Regulation (EC) No 1346/2000, in order to establish that “that law does not, under any circumstances, allow an appeal to be brought against that act”, must be construed as meaning that the party responsible for bringing the proof must demonstrate that, in the specific case, the lex causae does not provide in a general and abstract manner for any remedy at law against an act such as that considered to be harmful in the present case – namely the payment of a contractual debt – or
– (ii) the same article must be construed as meaning that the party responsible for bringing the proof must demonstrate that, if the lex causae allows an appeal against an act of that type, the conditions – different from those laid down by the lex fori concursus – required for the remedy at law to be allowed in the case before the court are not satisfied in practice.
Under such conditions, the Court has decided that that article must be construed as meaning that the party responsible for the burden of proof must prove, where the lex causae allows an appeal against an act which is considered prejudicial, that the conditions – different from those laid down in the lex fori concursus – required for the remedy at law to be allowed in the case before the court are not actually met.
What is relevant in the light of the above is that not only the law of substantive law is essential in the verification of the admissibility test of these actions for annulment specific to the subject of insolvency matters, however the procedural law as well, i.e. those concrete conditions and the deadlines within which the action for revocation can be brought.
The second relevant judgment is that ordered in the Case ZM v. E. A. Frerichs[37]. It concerns the relationship between the law applicable to the parties’ original legal act, which established the future conditions for the foreclosure of benefits, and the law applicable to a payment, i.e., the foreclosure itself.
The analysis takes into account the recital (16) in the preamble to Regulation (EC) No 593/2008[38], which states that: “in order to contribute to the achievement of the general objective of (...) the regulation – legal certainty in the European area of justice – the rules governing conflict of laws should have a high degree of predictability. The courts should, however, have a margin of discretion to identify the law that has the closest connection with the situation in question”.
The issue raised relates to an agreement relating to an inland waterway vessel concluded between E.A. Frerichs, which was established in the Netherlands, and Tankfracht, agreement under which the latter company was required to pay the former the amount of EUR 8,259.30 in respect of remuneration. In 2010, Oeltrans Befrachtungsgesellschaft paid E.A. Frerichs the amount owed by Tankfracht in the performance of that agreement.
The following year, insolvency proceedings were commenced against Oeltrans Befrachtungsgesellschaft by the Amtsgericht Hamburg, therefore, in 2014, the original liquidator in those proceedings brought an action before the competent court for the repayment of the amount of EUR 8,259.30 and the interest thereon, based on the annulment of that company’s documents.
As the insolvency proceedings against Oeltrans Befrachtungsgesellschaft were commenced in Germany, the question of the annulment of the payment made by that company for the benefit of E.A. Frerichs should have been therefore assessed in relation to German law. According to this law, the application before the court should have been accepted because, contrary to what has been acknowledged by the court of appeal, the referring court considered that the dispute in the main proceedings is not time-barred.
The referring court determines, however, that E.A. Frerichs relies on the applicability of the article relating to harmful acts of Regulation (EC) No 1346/2000, determining that that payment must be assessed in the light of the Netherlands law and has produced evidence to show that that law does not, in any case, make it possible to challenge that payment.
On that point, that court considers that it is the Netherlands law that governs the agreement concluded between Tankfracht and E.A. Frerichs, regardless of its legal classification.
Under such circumstances, the referring court has referred the following question for a preliminary ruling: the article relating to harmful acts of “Regulation (EC) No 1346/2000 and the article on the scope of the applicable law of Regulation (EC) No 593/2008 “must be construed as meaning that the law applicable to an agreement under the latter regulation also governs the payment made by a third party in performance of the contractual obligation to pay a contracting party?”
The Luxembourg court considered that, in the light of the objectives taken into account by the article on harmful acts, “a party to an agreement which has received a payment in its performance must reasonably be able to expect the law applicable to that agreement to cover that payment as well (underlined by us), including after the commencement of insolvency proceedings” [39].
It should be also taken into account that the law applicable to an agreement also governs the performance by a contractor or a third party of an obligation arising from that agreement, which ensures the expected level of legal certainty, as it makes it possible to ensure that, even after the commencement of insolvency proceedings, that obligation will remain governed by that law.
The above analysis demonstrates that the differences in the legal regime of these actions for annulment, within the Member States, lead to advantages or, correlatively, to risks, depending on the law chosen by the parties as applicable to the agreement and, at the same time, to the performance of any service in that agreement, as a fair level of expectation of the parties. Therefore, the diversity of the legal regime of actions for annulment, but also the complex nature of some transactions or the drafting of contractual clauses for choosing jurisdiction under the conditions of foreshadowing the future state of insolvency, may generate, cumulatively, inequities in a future insolvency procedure.
The need for uniform and compliant conduct, at this level, led to the preparation, within a working group led by Prof. Reinhard Bork and Prof. Michael Veder, of a Model Law[40] for these actions for annulment specific to the field of insolvency, comprising a set of rules in determining the conditions of admissibility, terms and the legal regime[41].
This project also envisaged the European Commission’s initiative on “increasing the level of convergence of insolvency laws”[42], the analysis referring, inter alia, to specific actions, in the annulment of acts or operations carried out in the period prior to the commencement of the proceedings.
- The issue of State aid and insolvency proceedings
The analysis of these aspects refers to the judgment in Nerea SpA v. Regione Marche[43].
For a fair correlation with the incidental provisions related to the Romanian insolvency law, the premises of the analysis are related to the provisions contained in two articles of Law no. 85/2014 on insolvency prevention and insolvency procedures[44], as subsequently amended and completed, namely:
Article 341 and Article 123 para. (1). According to Article 341, “any disqualifications, limitations, prohibitions or other such procedures established by legal norms or contractual provisions for the event of the commencement of insolvency proceedings shall be applicable only from the date of commencement of the bankruptcy. Any provisions to the contrary shall be repealed.” Pursuant to Article 123 para. (1) – “the ongoing agreements shall be considered to be maintained at the date of the commencement of the procedure, Article 1417 of the Civil Code is not applicable. Any contractual clauses terminating ongoing agreements, disqualifying from the benefit of the deadline or declaring the anticipated maturity date on the ground of the commencement of the proceedings shall be void”.
The internal rationale of those legislative texts has its origins in the need to establish effective protection for the debtor who wishes and may be restructured, for difficult situations in which, at the contractual level, has been established in advance with a fault in foreclosure in the event of the commencement of insolvency proceedings, without distinguishing between the procedure of judicial reorganization and that of bankruptcy.
Within the provisions included in the agreements for non-reimbursable financing from European funds allocated for various projects, a case of termination is established in favor of the contracting authority if “the beneficiary is declared bankrupt, is under liquidation, has its business under judicial administration, has entered into an arrangement with creditors, has suspended its economic activity, is the subject of any other similar procedure regarding these matters, or is in a similar situation resulting from a procedure provided for by national law” [45].
The national case-law has made a fair correlation between the abovementioned legislative texts, concluding that it is not possible to accept the termination of financing agreements or, where appropriate, the withdrawal of funds granted by financing orders, solely in the event that the general insolvency proceedings have been commenced against the debtor, a contractual partner or the beneficiary of the order.
Thus, the following were acknowledged[46]: “the fact that a debtor company (...) enters the general insolvency procedure, does not automatically result in a substantial change in the financing agreement or the purpose which it was granted for. From the evidence brought (...), it is abundantly clear that the Respondent continues to meet all the eligibility and selection criteria that were taken into account at the time of signing the funding application, subsequently materialized by an agreement signed by the parties. It is not clear from the contractual clauses that the Respondent did not use the support provided according to the intended purpose, the funds were neither sold to third parties nor rented, after the completion of the project, respectively the date of the last payment. The Court shall also acknowledge that, during the proceedings for the reorganization of the Respondent, the Appellant did not produce evidence showing that the subject-matter of the financing agreement had been disposed of. The Ordinance no. 79/2003, which governs the grant of those funds, refers to certain irregularities which may be found in the course of the performance of such an agreement, which is not the case here, since there is no question of a budgetary claim, as the Appellant claims. (...) The above-cited order establishes what is the activity of establishing budgetary claims, caused by irregularities in the use of funds, which would entail the obligation to pay in the form of a debt instrument. With regard to the date of signing the declaration and the financing agreement, 2004, the representatives of the Respondent, in good faith, pointed out that indeed, at that time, the company was not and has not been in the process of reorganization or in the process of declaring bankruptcy (underlined by us)”.
The same issue of law was debated during the meeting of the presidents of the specialized sections (former commercial) of the Courts of Appeal, in the field of disputes with professionals and insolvency, which took place in Sinaia, in June 2016: “during the debates, in a first stage, the incidence of the provisions of Article 341 of the Insolvency Code was taken into account from the perspective of construing the impossibility to benefit from European funding in the event of commencing the insolvency proceedings in the course of the performance of the agreement as a sanction, thus relying on the provisions of that article which are subject to “disqualifications, limitations, prohibitions or other such procedures established by legal rules or contractual provisions”. If it were to be accepted that we are in the situation of a sanction, then the consequence of the applicability of Article 341 would be that these disqualifications, limitations, etc., provided for in special laws or agreements, would apply only in bankruptcy proceedings.
The question that arose at this stage was whether the debtor can still benefit from this funding in the event of reorganization proceedings.
In a second phase, the opinion was outlined according to which we cannot discuss, however, about a sanction and thus Article 341 together with the consequences presented above does not find its applicability.
If there is such a varied number of opinions and incident issues, the participants decided to extend the discussion of the applicability of Article 341 of Law no. No 85/2014 until the next meeting, in order to consult the administrative sections as well and obtain relevant case-law at national level”.
This is in this context in which the judgment in the case Nerea SpA v. Regione Marche[47]acquires relevance for our analysis, as CJEU has established that aid granted to an enterprise, in compliance with Regulation (EC) No 800/2008[48], in particular Article 1 para. 6 thereof, cannot be revoked solely on the ground that the enterprise concerned was the subject of collective insolvency proceedings after the date on which the aid was granted to the said enterprise.
At the same time, it has been mentioned that the concept of “collective insolvency proceedings” means any insolvency proceedings governed by national law. In these circumstances, it is obvious that the bankruptcy proceedings are collective insolvency procedures inclusive, which Romania reported as such through the Annex A to Regulation (EU) 2015/848 on insolvency proceedings.
Specifically, the dispute in which the two questions referred for a preliminary ruling were raised, to which the Court replied, concerned the revocation of State aid granted to Nerea in the context of the implementation of a regional operational programme under the European Regional Development Fund as the company was placed, after receiving the grant, under the protection of a preventive arrangement with creditors with the continuation of its activity.
The Union law governs, in Recital (36) in the preamble to Regulation 800/2008, that aids should be considered granted at the time when the beneficiary is offered the legal right to receive such aid, according to the applicable national law.
At the same time, according to Article 1 para. (7) (c) of the same Regulation, an enterprise shall be considered in difficulty, therefore, exempted from state aid, if, regardless of the type of company in question, it meets the criteria laid down by national law for being subject to collective insolvency proceedings.
According to the Italian law, relied on in the present case, the arrangement is regarded as collective insolvency proceedings, and there is also a provision specifying that “ongoing agreements at the time of the application, including those concluded with public administrations, shall not be terminated as a result of the commencement of proceedings. Any contrary agreements are void (underlined by us). The admission to the procedure of preventive arrangement with creditors does not hinder the continuation of public procurement agreements if the specialist appointed by the debtor (...) has certified the compliance with the plan and reasonable capacity for execution”.
The actual situation, in the case brought before the CJEU, commenced with the decision by which the Marche Region approved the call for projects and the forms related to the implementation of measure 1.2.1. of the ROP of the ERDF for the period from 2007 to 2013, application which was approved by a decision of the Commission[49]. In 2011, Nerea submitted an application for aid under that project. The Marche Region, under a 2012 decision, granted financial aid amounting to EUR 144,052.58 for eligible expenses of EUR 665,262.91. At Nerea’s request, an advance payment of 50% of the amount of this aid was paid by the intermediary body MedioCredito Centrale (MCC) SpA. In 2013, after realizing the investment covered by that financial aid, Nerea drew up an expenses report regarding the expenses incurred and requested payment of the balance, following which Nerea filed a case with the competent court for preventive arrangement with creditors with the continuation of the activity.
In 2014, the competent Court commenced the proceedings for a preventive arrangement with creditors.
In February 2015, by a letter, the intermediate body notified Nerea by a decision on the commencement of the procedure for revoking the financial aid granted to it by the Marche Region. The statement of reasons for that decision was justified by the fact that, since it had been accepted in the procedure of preventive arrangement with creditors with the continuation of the activity, Nerea no longer met the conditions for admissibility for financing laid down in the call for projects. In the month of the same year, the Marche Region revoked the financial aid granted to Nerea and requested the repayment of the advance paid to it, plus the interest. Consequently, Nerea brought an action before the referring court against those decisions, alleging, in particular, a breach of the Regional Operational Programme, Article 1 para. (7) of Regulation No 800/2008 and the principle of sound administration.
Under such conditions, the national court decided to suspend the proceedings and to refer the following questions to the Court of Justice of the EU for a preliminary ruling:
- “As a temporary conclusion, Article 1 para. (7) (c) of the Regulation (EU) No 800/2008 refers only to proceedings which may be commenced ex officio (underlined by us) by the administrative and judicial authorities of the Member States (in Italy, for example, bankruptcy) or also to those which may be commenced only at the request of the interested entrepreneur (underlined by us) (as, in national law, is the preventive arrangement with creditors), having in mind that the rule mentions the criteria (...) “to be the subject” of collective insolvency proceedings?”
- “If they consider that Regulation (EC) No 800/2008 refers to all collective procedures (underlined by us), as regards specifically the institution of preventive arrangement with creditors with the continuation of the activity (...), Article 1 para. (7) (c) of that Regulation we mentioned , it must be construed as meaning that the mere fulfilment of criteria for being the subject of a collective procedure by the entrepreneur seeking aid from the Structural Funds excludes the granting of funding or imposes an obligation on the national managing authority to revoke the funding already granted (underlined by us) or, on the contrary, is the situation of difficulty to be verified in concrete terms, taking into account, for example, the deadlines for initiating the proceedings, for complying with the commitments entered into by the entrepreneur and any other relevant circumstance?”
In answering the two questions referred for a preliminary ruling, the Court considered as follows: [50]
- Article 1 para. (7) (c) of Regulation (EC) No 800/2008 must be construed as meaning that the concept of “collective insolvency proceedings” to which it refers covers all collective proceedings for the insolvency of enterprises under national law, regardless of whether they are commenced by national administrative or judicial authorities of their own motion or whether they are commenced on the initiative of the enterprise concerned[51];
- the aid granted to an enterprise according to Regulation (EC) No 800/2008, especially Article 1 para. 6, cannot be revoked solely as that the enterprise concerned has been the subject of collective insolvency proceedings after the date on which the aid was granted to it[52].
In relation to the national legislation of Romania, according to the provisions of Article 7 para. (2) of G.E.O. no. 77/2014 on national procedures in the field of State aid, as well as for amending and supplementing Competition Law no. 21/1996[53], as subsequently amended and completed, the measures financed from European funds have a legal regime assimilated to state aid (de minimis aid), but without the need to implement verification measures regarding the compliance with the economic, budgetary and financial policies of the Romanian state.
Also, according to the provisions of Article 36 of G.E.O. no. 66/2011 on the prevention, finding and sanctioning of irregularities in obtaining and using European funds and/or national public funds related to them[54], as subsequently amended and completed and completions, “by way of derogation from the provisions of Article 36 and Article 86 para. (1) of Law no. 85/2006 on insolvency proceedings, as subsequently amended and completed, within 15 days from the date of acknowledgment of the court ruling ordering the commencement of insolvency proceedings of a beneficiary, the authorities competent in the management of European funds have the obligation to commence the activity of finding irregularities and establishing budgetary claims provided for by this emergency ordinance for the amounts awarded under the contract/agreement/decision for financing from European funds and/or from national public funds related to them”.
The legal problem that arose consists in the possibility of classifying as a cause of fault in the development of the project the situation of the entry of the funds’ beneficiary, after the eligibility analysis and the collection of the amounts representing non-reimbursable financing, in bankruptcy proceedings.
In its judgment ordered for the Case Nerea SpA v. Regione Marche[55], the Court of Luxembourg established two fundamental elements in its analysis, namely:
- the notion of “collective insolvency proceedings” covers all collective insolvency proceedings against enterprises as provided by the national law, regardless of whether they are commenced ex officio by national administrative or judicial authorities or whether they are commenced by the enterprise concerned, and
- the aid granted to an enterprise in compliance with the conditions of eligibility at the time of granting cannot be revoked solely on the ground that the enterprise concerned was the subject of collective insolvency proceedings after the date on which the aid was granted.
The fact that the case-law of the CJEU has not made any distinction in relation to the request to voluntarily commence the insolvency proceedings or its commencement ex officio, validates the reasoning of our national courts, that has been cited before, as regards the fact that the state of insolvency or, as the case may be, of financial difficulty, represents an objective state of fact, which cannot be assimilated, ope legis, with the existence of a contractual fault.
Under these circumstances, applying the considerations required under national law of the case-law of the Court of Justice of the European Union, the provisions of Article 341 of the Insolvency Code must be construed as meaning that they no longer correspond to the requirements of Union law, the obligation of compliance established by Article 148 para. (2)[56] of the Constitution of Romania, republished being violated.
We acknowledge the fact that such a situation is similar to the one envisaged by the Constitutional Court of Romania in the Decision no. 68/28 February 2015 on the exception of unconstitutionality of the provisions of Article 86 para. (6) of Law no. No 85/2006 on insolvency proceedings, which referred to the judgment in David Claes and Others v. Landsbanki Luxembourg SA[57], with the following reasoning: “The Court acknowledges that the regulatory inconsistency thus found cannot be resolved solely by recourse to the constitutional principle of the priority for the application of the acts of the European Union, but by finding the infringement of Article 148 para. (2) of the Constitution, a text which contains a clause for the compliance of internal laws with the acts of the European Union [with the distinctions mentioned in Decision no. 80 of 16 February 2014 (...), paragraph 455], and its violation, in the case of acts of the European Union with constitutional relevance, must be sanctioned as such by the Constitutional Court. Of course, in respect of acts of the European Union which have no constitutional relevance, the power to remedy the regulatory inconsistency lies with the law-maker or the courts, as the case may be”. According to the Fundamental Law of Romania, Article 148 para. (1), “The Parliament, the President of Romania, the Government and the judicial authority shall guarantee the fulfilment of the obligations arising from the Act of Accession and the provisions of paragraph (2)”. Thus, it contributes, in a concrete manner, to the achievement of a uniform and compliant conduct in this field in all the Member States of the European Union.
- Conclusions
The Directive on restructuring frameworks and insolvency is considered as a central pillar of reflecting the need to standardize insolvency law[58], which is an important objective pursued in the legislative field by the European Union, in particular after Lisbon[59].
Moreover, we consider that the Directive has substantiated a reality, whose perception is increasingly clear, in relation to the importance that the Union attaches to restructuring and insolvency proceedings: “Insolvency law is one of the most important bottlenecks hindering the integration of capital markets in the Euro space and beyond” [60].
The analysis of the continuous trends and developments that the economic factor highlights to the national components of the Insolvency Law of Member States leads to the substantiation of a deeper need for uniformity, as the maintenance of differentiating elements at the level of individual legislative solutions affects the standard of exigency of confidence in the predictability and certainty of the protection of certain rights, of the citizens of the European Union, including Romanian citizens[61]. The adoption, in the future, of a regulation in this area shall no doubly contribute to the fulfilment of this goal, which is fully in line with the will expressed by the Member States in adopting the fundamental European Union legislation.
[1] According to Article 47 of the Treaty on the European Union: “The Union shall have legal personality”.
[2] Articles 3 to 6 TFEU.
[3] Article 3 para. (1) subparagraphs a)-e).
[4] Article 4 para. (2) subparagraphs a)-i), para. (3), Article 5 para. (1) and (2).
[5] Published in OJ L 160, 30.06.2000. Regulation (EC) Regulation (EU) 2015/848 on insolvency proceedings, in force since 26 June 2017, was repealed with Regulation (EU) 2016/2000. According to Article 91 para. (2) of the latter Regulation, 'references to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex D to this Regulation'.
[6] Published in OJ L 141, 5 June 2015.
[7] Materialized in Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, discharge of debt and disqualifications, as well as measures to increase the efficiency of restructuring, insolvency and discharge procedures amending Directive (EU) 2017/1132 (the Restructuring and Insolvency Directive), published in OJ L 172, 26 June 2019.
[8] Explanatory Memorandum to the Proposal for a Directive on preventive restructuring frameworks, the second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures amending Directive 2012/30/EU, COM(2016) 723 final, Strasbourg, 22 November 2016.
[9] Under the name Early restructuring and a second chance for entrepreneurs; A modern and streamlined approach to business insolvency (available at: http://ec.europa.eu/information_society/newsroom/ image/document/2016-48/eu_factsheet_40047.pdf, accessed on 30 July 2021).
[10] For a history on the evolution of this idea of the need to standardize the legislation on restructuring and insolvency, the stages and the difficulties encountered, see the studies: A. Fuerea, A. Deli-Diaconescu, Directiva privind restructurarea și insolvența. Între așteptări, dezbateri și previziuni, în C.J. nr. 8/2019 (Restructuring and Insolvency Directive. Expectations, Debates and Predictions in C.J. no. 8/2019), pp. 429-435; Idem, Provocările aduse de Directiva privind restructurarea și insolvența, în RRDA nr. 6/2019 (The Challenges Brought by the Restructuring and Insolvency Directive, in RRDA no. 6/2019), p. 63-73; A. Deli, Crearea unei probabilități compatibile: transferul de întreprindere într-o procedură de restructurare, în RRDC nr. 2/2020 (Creating a Compatible Probability: Undertaking Transfer in a restructuring procedure in RRDC no. 2/2020), pp. 77-85.
[11] The objective of the Proposal for a Directive on preventive restructuring frameworks, the second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures amending Directive 2012/30/EU.
[12] The estimates of the economic environment indicate a massive increase in insolvency proceedings in 2022, as a result of the Covid-19 pandemic (see: https://www.cnbc.com/2021/10/06/business-insolvencies-to-rise-in-2022-in-first-since-covid-euler-hermes.html, accessed on 19 November 2021).
[13] The Communication of the Commission entitled Capital markets union – Accelerating reforms, Brussels, 14 September 2016, COM(2016) 601 final.
[14] For arguments supporting and developing the need for a European regulation in this field in the future, see A. Fuerea, A. Deli, Tratat practic de insolvență (Practical Insolvency Treaty), in the process of publication at Hamangiu Publishing House, Chapter IV. Directive (EU) 2019/1023 on restructuring and insolvency frameworks, coordinated by Professor R. Bufan, PhD.
[15] C.G. Paulus, R. Damman, European Preventive Restructuring, Directive (EU) 2019/1023, Article-by-Article Commentary, C.H. Beck Publishing House, 2021, p. 7.
[16] A. Deli, Problema de compatibilitate dintre procedura insolvenței și Codul de procedură civilă (Compatibility Issues Between Insolvency Proceedings and the Code of Civil Procedure)”, Universul Juridic Publishing House, Bucharest, 2019, p. 6.
[17] “The case-law of the Court of Justice is not a source of EU law in the sense known to it by the legal system common law, court rulings having no effect erga omnes. The solutions given by the Court of Justice in Luxembourg are binding as regards the way in which it construes the provisions of European Union law”. (A. Dumitrașcu, R.-M. Popescu, Dreptul Uniunii Europene. Sinteze și aplicații (European Union Law. Syntheses and Applications), second edition, revised and enlarged, Universul Juridic Publishing House, Bucharest, 2015, p. 135).
[18] Certain parts of the analysis presented below are part of the doctoral thesis “Problema de compatibilitate dintre procedura insolvenței și Codul de procedură civilă (Compatibility Issues Between Insolvency Proceedings and the Code of Civil Procedure)” – author A. Deli, a component that was not published in the paper with the same title (published at Universul Juridic Publishing House, Bucharest, 2019), but enriched with additional elements, derived from the European accelerated evolutionary order of the matter of restructuring and insolvency, conferred the opportunity and encouraged further research, including through this paper.
[19] Judgment of the Court (First Chamber) of 12 February 2009, Christopher Seagon v. Deko Marty Belgium NV, Case C-339/07, EU:C:2009:83 (available at: https://eur-lex.europa.eu/legal-content/RO/TXT/PDF/?uri=CELEX:62007CJ0339&from=EN, accessed on 7 December 2021).
[20] Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, published in OJ L 141, 5 June 2015.
[21] Paragraphs 21-22 of the judgment of the Court, Christopher Seagon v. Deko Marty Belgium NV, that has been cited before.
[22] The High Court has established that: “In the interpretation and uniform application of the provisions of Article 997 para. (1) of the Code of Civil Procedure, corroborated to Article 233 para. (1) subparagraph a) and Article 260 of the Code of Fiscal Procedure, the applications addressed to the syndic judge by way of the presidential order having as object temporary measures regarding the withdrawal, suspension and provisional suspension of the enforcement measures taken by the tax enforcement bodies are acceptable, in cases where the foreclosure was commenced by the tax enforcement bodies based on Article 143 para. (1) the final section of Law no. 85/2014”.
[23] “The courts of the Member States on whose territory insolvency proceedings have been opened should also have jurisdiction over actions arising directly from and closely related to insolvency proceedings. Such actions should include revocatory actions brought against Respondents from other Member States”.
[24] Judgment of the Court (Fifth Chamber) of 26 October 2016, Case C-195/15, EU:C:2016:804 (available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=184857&pageIndex=0& doclang=RO&mode=req&dir=&occ=first&part=1, accessed on 7 December 2021).
[25] Paragraphs 31 and 32 of the judgment SCI Senior Home v. Gemeinde Wedemark, Hannoversche Volksbank eG, that has been cited before.
[26] Article 161 para. 5 Law No 85/2014 on insolvency prevention and insolvency procedures (Insolvency Code), as subsequently amended and completed and Article 242 para. (6) of Law no. 207/2015 on the Fiscal Procedure Code, as subsequently amended and completed.
[27] Judgment of the Court (Sixth Chamber) of 15 October 2015, Case C-310/14, EU:C:2015:690 (available at:
https://curia.europa.eu/juris/document/document.jsf?text=&docid=169825&pageIndex=0&doclang=RO&mode=lst&dir=&occ=first&part=1&cid=206748,accessed on 7 December 2021).
[28] In this regard, see R. Parry, J. Ayliffe QC, S. Shivji, Transaction Avoidance in insolvencies, Third Edition, Ed. Oxford University Press, 2017, pp. 27 et seq.
[29] As it has been cited before.
[30] It is about Article 4 para. (2) (m).
[31] Article 13.
[32] Para. 22 of the judgment Nike European Operations Netherlands BV v. Sportland Oy, that has been cited before.
[33] Ibid, para. 23.
[34] Para. 3 of the operative part of the judgment Nike European Operations Netherlands BV v. Sportland Oy, that has been cited before.
[35] Ibid para. 46.
[36] Judgment of the Court (Fifth Chamber) of 8 June 2017, Case C-54/16, EU:C:2017:433 (available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=191305&pageIndex=0&doclang=RO&mode=lst&dir=&occ=first&part=1&cid=210102, accessed on 7 December 2021).
[37] Judgment of the Court (First Chamber) of 22 April 2021, Case C-73/20, EU:C:2021:315 (available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=240225&pageIndex=0&doclang=RO&mode=lst&dir=&occ=first&part=1&cid=211735, accessed on 7 December 2021).
[38] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), published in OJ L 177, 4 July 2008.
[39] Para. 31 of the ZM v. E. A. Frerichs , that has been cited before.
[40] Available at http://www.intersentiaonline.com, accessed on 13 October 2021.
[41] For an overview on how this project appeared, the evolution, the current state and the conclusions of the experts who took part in its elaboration, see R. Bork, Towards Harmonisation of Transactions Avoidance Laws, Eurofenix, The Journal of INSOL Europe, no. 85, Autumn 2021, pp. 18 et seq.
[42] Published on 11 November 2020 (available at https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12592-Insolvency-laws-increasing-convergence-of-national-laws-to-encourage-cross-border-investment_en, accessed 13 October 2021).
[43] Judgment of the Court (Third Chamber) of 6 July 2017, Case C-245/16, EU:C:2017:521 (available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=192404&pageIndex=0&doclang=RO&mode=lst&dir=&occ=first&part=1&cid=988401, accessed on 7 December 2021).
[44] Published in the Official Gazette No. 466 of 25 June 2014.
[45] Article 10 para. 10.2 (1)/(d) of Annex No. 1 to Framework agreement for non-reimbursable financing from the Operational Programme for Fisheries and Maritime Affairs 2014-2020 (...) – Sprijin pregătitor pentru înființarea parteneriatelor public-private și elaborarea strategiilor de dezvoltare locală integrată a zonelor pescărești (available at Sprijin pregătitor PU4 Cod: PO M01 e. II. r.0 – MADR - http://madr.ro › docs › fep › ghidul-solicitantului (Preparatory support for the establishment of public-private partnerships and the elaboration of strategies for integrated local development of fisheries areas (available at Pu4 Preparatory Support Code: PO M01 e. II. r.0 – MADR - http://madr.ro › docs › fep › the applicant's guide), accessed on 15 December 2021).
[46] C. Ap. Ploieşti, commercial and administrative and fiscal court, Ruling no. 155/07.10.2010. In the same line of ideas, District Court of Bucharest, Division VII of the Commercial Court, Ruling No. 7186/16 November 2010, irrevocable.
[47] That has been cited before.
[48] Regulation (EC) No 800/2008 of the Commission of 6 August 2008 declaring certain categories of aid compatible with the common market pursuant to Articles 87 and 88 of the Treaty (General Block Exemption Regulation), published in OJ L 214, 9.8.2008. The Regulation was repealed by Regulation (EU) No 651/2014 of the Commission of 17 June 2014 declaring certain categories of aid compatible with the internal market pursuant to Articles 107 and 108 of the Treaty, published in OJ L 187 of 26 June 2014.
[49] The facts set out below are taken from the preamble to the judgment (The dispute in the main proceedings and questions referred for a preliminary ruling”), para. 10 to 19.
[50] The reasons shall lie with the Court, para. 21 to 29, with regard to the first question, namely paragraphs 30 to 39, on the second question.
[51] Para. 29 of the judgment Nerea SpA v. Regione Marche, that has been cited before.
[52] Ibid para. 38.
[53] Published in the Official Gazette No. 893/9 December 2014.
[54] Published in the Official Gazette No. 461/30 June 2011.
[55] That has been cited before.
[56] “As a result of accession, the provisions of the Constituent Treaties of the European Union, as well as the other binding Community regulations, take precedence over the contrary provisions of national laws, in compliance with the provisions of the Act of Accession”.
[57] Judgment of the Court (Third Chamber) of 3 March 2011, Joined Cases C-235/10 to C-239/10, EU:C:2011:119 (available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=84210&pageIndex=0&doclang=RO&mode=lst&dir=&occ=first&part=1&cid=6682352, accessed on 9 December 2021).
[58] In this regard, A. Rasekh, A. Rosha, Restructuring and Insolvency in Europe: Policy Options in the Implementation of the EU Directive, available at: https://www.elibrary.imf.org/view/journals/001/ 2021/152/article-A001-en.xml, accessed on 18 November 2021.
[59] Article 21 para. (2) (h) of the TEU.
[60] Completing Europe's Economic and Monetary Union, Report prepared by J.-C. Juncker in close collaboration with D. Tusk, J. Dijsselbloem, M. Draghi and M. Schulz (the Five Presidents), 22 June 2015, p. 14 (available at https://www.ecb.europa.eu/pub/pdf/other/5presidentsreport.ro.pdf, accessed 9 December 2021).
[61] Considering the purpose had in mind, but also the expected social impact, if we consider the consequences of the insolvency situations.
