Case number and/or case name
C-649/13 Comité d'entreprise de Nortel Networks SA and Others v Cosme Rogeau liquidator of Nortel Networks SA and Cosme Rogeau liquidator of Nortel Networks SA v Alan Robert Bloom and Others (First Chamber)
Parties
Comité d'entreprise de Nortel Networks SA and Others v Cosme Rogeau (acting as court-appointed liquidator in the secondary insolvency proceedings in respect of Nortel Networks SA) and Alan Robert Bloom, Alan Michael Hudson, Stephen John Harris, Christopher John Wilkinson Hill (acting as joint administrators in the main insolvency proceedings in respect of Nortel Networks SA)
Referring court and Member State
France, First Instance, Tribunal de commerce de Versailles
Summary
This case on the Insolvency Regulation concerns also the interpretation of Art 1(2)(b) of Brussels I. It was referred to the CJEU in in the context of (i) an action brought by comité d’entreprise de Nortel Networks SA (‘NNSA’) (the works council of NNSA) and others against Mr Rogeau, acting as court-appointed liquidator in the secondary insolvency proceedings opened in France in respect of NNSA (‘the secondary proceedings’), seeking, inter alia, the making of a severance payment, and (ii) an action brought by Mr Rogeau, acting as court-appointed liquidator in the secondary proceedings, seeking that Mr Bloom, Mr Hudson, Mr Harris and Mr Wilkinson Hill, acting as joint administrators (‘the joint administrators’) in the main insolvency proceedings opened in the United Kingdom in respect of NNSA (‘the main proceedings’), be joined as third parties. Although the first part of the question referred to the CJEU solely related to the allocation of international jurisdiction between the court hearing the main proceedings (ie the English High Court) and the court hearing the secondary proceedings (ie the referring court) under the Insolvency Regulation, the CJEU firstly examined whether the referring court’s jurisdiction is governed by that Regulation or by Brussels I. The CJEU noted that the disputes before the referring court fall within the context of the application of a large number of agreements concluded by or between the parties before it. It observed that the jurisdiction to rule on the dispute concerning the interpretation of one or more of those agreements may be governed by Brussels I, even though the dispute is between the liquidators in two sets of insolvency proceedings, one main and the other secondary, each of which falls within the Insolvency Regulation. It reaffirmed that these two Regulations must be interpreted in such a way as to avoid any overlap between the rules of law that those instruments lay down and any legal vacuum. Citing C 157/13 Nickel & Goeldner Spedition, it confirmed that actions excluded under Art 1(2)(b) of Brussels I from its scope fall within the scope of the Insolvency Regulation, and correspondingly actions falling outside the scope of Art 3(1) of the Insolvency Regulation fall within Brussels I’s scope. It also reaffirmed that the scope of the Insolvency Regulation must not be interpreted broadly, and that only actions which derive directly from insolvency proceedings and are closely connected with them (‘related actions’) are excluded from the scope of Brussels I. It recalled that the decisive criterion for identifying the area within which an action falls is not the procedural context of that action, but its legal basis; and therefore it must be determined whether the right or the obligation which forms the basis of the action has its source in the ordinary rules of civil and commercial law or in derogating rules specific to insolvency proceedings. In the present case, after noting that is for the referring court to assess the content of the agreements in question, it found that the rights or obligations on which the actions before the referring court are founded derive directly from insolvency proceedings, are closely connected with them and have their source in Arts 3(2) and 27 of the Insolvency Regulation, so that that Regulation is applicable. This interpretation was consistent with the existing case law of the CJEU on Art 1(2)(b) of Brussels I. The CJEU raised the issue of the possible applicability of Brussels I for it to be discussed at the oral hearing in this case even though it had not been raised by the referring court or by those who submitted written observations (including the Commission and the French and UK Governments), see AG Mengozzi’s Opinion at para 22. Having raised the issue the CJEU, guided by AG Mengozzi (paras 23-29), held that on the evidence presented to it the legal basis of the claims before the French court was insolvency law (paras 25-30).