EUPillar C-157/13 Nickel & Goeldner Spedition GmbH v «Kintra» UAB (First Chamber)

Summary

The case concerns the interpretation of Arts 3(1) and 44(3) of the Insolvency Regulation, and of Arts 1(2)(b) and 71(1) of Brussels I. It was referred to the CJEU in the Lithuanian proceedings between Nickel & Goeldner, a company incorporated under German law and having its registered office in Germany, and Kintra, a company incorporated under Lithuanian law and having its registered office in Lithuania that had been placed in liquidation, in relation to the payment of a sum for services comprising the international carriage of goods. In 2009, the Vilnius Reginal Court opened insolvency proceedings against Kintra. Kintra had provided services of the international carriage of goods for Nickel & Goeldner and the insolvency administrator of Kintra applied to Vilnius Reginal Court for an order against Nickel & Goeldner for the payment of the debt for this service by relying on the jurisdiction under the Lithuanian Law on the insolvency of undertakings. Nickel & Goeldner disputed that jurisdiction by claiming that the dispute fell within the scope of Art 31 of the CMR and Brussels I. The court found that it had jurisdiction under the Lithuanian Law on the insolvency of undertakings and the Insolvency Regulation, and granted the application of the insolvency administrator. This judgment was appealed against before the Lithuanian Court of Appeal which upheld it on the grounds that the dispute related to the bankruptcy exception in Art 1(2)(b) of Brussels I and the court with jurisdiction in the dispute must be decided in accordance with Art 3(1) of the Insolvency Regulation and the provisions of the Lithuanian Law on the insolvency of undertakings. The issue came before the Supreme Court of Lithuania which referred three questions to the CJEU. By its first question, the court asked whether the action falls within the scope of the Insolvency Regulation or Brussels I. The CJEU referred to its case-law that relies on the preparatory documents of the Brussels Convention, and the relevant recitals to the Brussels I and Insolvency Regulations regarding their scope of application and held that the legislature’s intention on their scope was that the concept of civil and commercial matters under Brussels I should be broad while the scope of application of the Insolvency Regulation should not be broadly interpreted. The CJEU also noted that its decisive criterion is whether the right or the obligation which respects the basis of the action finds its source in the common rules of civil and commercial law or in the derogating rules specific to insolvency proceedings. The CJEU held that the action at issue does not have a direct link with the insolvency proceedings opened in relation to the applicant since it is an action for the payment of a debt arising out of the provision of services in implementation of a contract for carriage and the fact that it is taken by the insolvency administrator does not substantially amend its nature. The CJEU decided that the action comes under the concept of civil and commercial matters in Brussels I. Based on this answer, there was no need to answer the second question. By its third question, the court asked, where the dispute falls within the scope of both Brussels I and the CMR, which instrument’s rules are to be applied. After stating that it is for the referring court to determine whether the carriage services in question meet the conditions for application of the CMR, the CJEU referred to its previous interpretation of Art 71 of Brussels I and noted that the CMR is covered by that provision and therefore has, in principle, the effect of precluding the application of provisions of Brussels I relating to the same question. The CJEU held that where a dispute falls within the scope of both Brussels I and the CMR, according to Art 71(1) of Brussels I, a MS may apply the jurisdiction rules in Art 31(1) of the CMR.