Brussels, 16/12/2011 (Agence Europe) - Insolvency proceedings opened against a company established in one member state cannot be extended to include a second company whose headquarters are in a second member state unless it can be established that the “centre of main interests” of the second company is in the country where initial proceedings were opened. The intermixing of the properties of the two companies (for example, intermixing of accounts or abnormal financial relations) is not enough on its own to establish that the condition has been met.
That is the ruling handed down by the Court of Justice on Thursday 15 December in Case C-161/10 in response to questions from the French Cour de Cassation, which had asked for interpretation of Regulation 1346/2000 on insolvency proceedings. The company Médiasucre, headquartered in France, was wound up by decision of the court in 2007. The liquidator asked the Marseilles trade court to extend Médiasucre's insolvency proceedings to Italian company Rastelli Davide, arguing that the two companies' properties were intermixed. After going through the legal system, the case was referred to the Cour de Cassation which asked in substance if, in the light of the above-mentioned European regulation, the French court hearing the Médiasucre case, applying national law, was able to extend the proceedings opened against the French company to include Rastelli Davide purely because of this intermixing of the properties of the two companies.
The Court delivered a negative response, indicating that from the European regulation it is to be assumed that the “centre of main interests” of a company is the place of its registered office as the place where it manages its interests. Thus, to be able to extend the insolvency proceedings to include the Italian company, would have had to reverse this assumption. This is only possible through an “overall assessment of the relevant factors” which makes it possible to establish “in a manner ascertainable by third parties”, that the actual centre of management and supervision of the second company is in the country in which the initial insolvency proceedings were opened (in this instance, France). That was not the case with Rastelli Davide. (FG/transl.rt)