EUPillar C-111/08 SCT Industri AB i likvidation v Alpenblume AB (First Chamber) [2009] ECR I-05655

Summary

This case on Art 1(2)(b) of Brussels I was referred to the CJEU in proceedings between two Swedish companies, SCT and Alpenblume, concerning an action to recover ownership of shares which had been held in an Austrian company by SCT and which were sold to Alpenblume. That action was brought following an Austrian court judgment which declared Alpenblume’s acquisition of those shares to be invalid. In 1993, insolvency proceedings were opened against SCT in Sweden and a liquidator was appointed. In the course of those proceedings, the liquidator transferred SCT’s shares, that was, a holding of 47% in the capital of SCT Hotelbetrieb GmbH (a company incorporated under Austrian law, now Scaniahof) to Alpenblume. Alpenblume was registered in Austria as owner of those shares in the company. Later, the insolvency proceedings had been closed without surplus, and SCT was ordered to be wound up. SCT brought further proceedings in Austria. It was held by the Austrian court that the liquidator appointed in Sweden had no power to dispose of assets situated in Austria and that consequently Alpenblume’s acquisition of the shares was invalid. Accordingly, the Austrian court ordered Scaniahof to register SCT as owner of the shares transferred from the assets in insolvency. Alpenblume appeared as intervener in the Austrian proceedings, but the Supreme Court of Austria dismissed the intervener’s appeal. Alpenblume brought proceedings in Sweden against SCT for restitution of title to the shares in question, requesting that SCT be ordered, on penalty of a fine, to take all measures necessary for Alpenblume to be registered as rightful owner of the shares. The Swedish court held that that there was no obstacle to examination of that request. The appeal was dismissed. During a further appeal, the referring court asked the CJEU whether a decision by which a court of another MS has held a transfer of shares effected in the context of insolvency proceedings to be invalid, on the ground that the liquidator who made the transfer lacked the power to dispose of assets situated in that MS, falls under the exception in Art 1(2)(b) of Brussels I. The CJEU firstly noted that the Insolvency Regulation was not applicable to this case since the insolvency proceedings had been opened before the entry into force of the Insolvency Regulation. The CJEU cited its relevant case-law on the Brussels Convention, particularly 133/78 Gourdain, where it had held 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, otherwise it falls within the scope of the Brussels Convention. In interpreting the exception, it also took account of the Jenard Report on the Brussels Convention. It observed that Art 1(2)(b) of Brussels I has the same exception and therefore the position is the same. It then examined whether there is a close link between the court action and the insolvency proceedings, and found that that link is particularly close in the present case for two main reasons. The first reason was that the transfer at issue in the main proceedings and the action for restitution of title to which it gave rise, were the direct and indissociable consequence of the exercise by the liquidator -an individual who intervened only after the insolvency proceedings had been opened- of a power which he derived specifically from the provisions of national law governing that type of proceedings. Secondly, the ground on which the Austrian court had held invalid the transfer of the shares related, specifically and exclusively, to the extent of the powers of that liquidator in insolvency proceedings and, in particular, his power to dispose of the assets situated in Austria. It thus found the exception in Art 1(2)(b) applicable.