Case number and/or case name
C-292/08 German Graphics Graphische Maschinen GmbH v Alice van der Schee (First Chamber) [2009] ECR I-08421
Referring court and Member State
Netherlands, Third Instance, Hoge Raad der Nederlanden
Summary
This case on Art 1(2)(b) of Brussels I concerns the relationship between Brussels I and the Insolvency Regulation. It was referred to the CJEU in proceedings between German Graphics (established under German law) and Ms van der Schee, acting as liquidator of Holland Binding (established under Dutch law), regarding the enforcement of a German court order in the Netherlands. German Graphics (the seller) concluded a sale contract for machines with Holland Binding (the purchaser) containing a reservation of title clause in its favour. The Dutch courts placed Holland Binding in involuntary liquidation and appointed a liquidator. German Graphics made an application in Germany, based on the reservation of title clause, for the adoption of protective measures as regards the machines situated in the Netherlands. The application was granted. This German court judgment was declared enforceable in the Netherlands. Upon van der Schee’s appeal, the declaration of enforceability was revoked. During the appeal, the referring court asked some questions to the CJEU. The first question was whether, before being able to declare that a judgment should be recognised for the purposes of Art 25(2) of the Insolvency Regulation on the basis of Brussels I, the court must determine whether the judgment is within the scope of Brussels I. The CJEU considered Art 25 of the Insolvency Regulation dealing with the recognition and enforceability of judgments other than those directly concerning the opening of insolvency proceedings. It observed that among those judgments, there are some judgments coming within the scope of neither the Insolvency Regulation nor Brussels I. Based on the wording of Art 25(2) of the Insolvency Regulation, it found that the application of Brussels I to a judgment under that provision is subject to the condition that the judgment falls within the material scope of Brussels I. The CJEU held that the national court must determine whether the judgment is within the material scope of Brussels I before it declares that the judgment, not within the scope of the Insolvency Regulation, should be recognised in accordance with Brussels I. The other questions concerned whether the action brought by the seller against the purchaser based on the reservation of title clause is excluded from the scope of Brussels I under Art 1(2)(b). Considering Recitals 2, 7 and 15 to Brussels I, the CJEU observed that the legislature’s intention in setting out a broad definition of the concept of ‘civil and commercial matters’ in Art 1(1) was to broaden the scope of the article, which is also supported by Recital 6 to the Insolvency Regulation. It consequently stated that the scope of application of the Insolvency Regulation should not be broadly interpreted. The CJEU took account of its relevant case-law on the Brussels Convention. It affirmed 133/78 Gourdain that an action is related to bankruptcy if it derives directly from the bankruptcy and is closely linked to proceedings for realising the assets or judicial supervision, and also affirmed C-339/07 Seagon that an action with such characteristics does not fall within the scope of the Brussels Convention. It observed that, in the present case, that link is neither sufficiently direct nor sufficiently close to exclude the application of Brussels I because the action concerning that reservation of title clause constitutes an independent claim, as it is not based on the law of the insolvency proceedings and requires neither the opening of such proceedings nor the involvement of a liquidator. It found that the mere fact that the liquidator is a party to the proceedings is not sufficient to classify the German proceedings as proceedings deriving directly from the insolvency and being closely linked to proceedings for realising assets. It held that the claim brought in Germany does not fall outside the Brussels I’s scope of application. The CJEU dealt with this straightforward case reasonably quickly in 14 months.