De Europese Insolventieverordening in de Nederlandse rechtspraak

The present overview of judicial decisions in the Netherlands concerning the current European Insolvency Regulation (EIR) (No. 1346/2000) during the 13 years of its applicability indicates that jurisdiction has been the dominant issue in the Dutch Courts. Emphasizing the (relative) autonomy of a separate legal entity and referring to the more specific criteria of being ascertainable by third parties - as formulated by the Court of Justice in e.g. the Eurofood case - the Dutch Courts have fairly strictly presumed that the place of a company’s registered office determines the Centre of its Main Interests (COMI). With regard to determining jurisdiction to open insolvency proceedings against natural persons who are still involved, in any way, in economic activities in the Netherlands, the Supreme Court of the Netherlands has ruled in a leading case that the place of the business interests prevails over a ‘habitual residence’ abroad, certainly if the latter is not absolutely clear.

In the case of Seagon/Deko the Court of Justice clarified jurisdiction concerning insolvency-related issues and in the period before this preliminary decision the Dutch Courts could derive their jurisdiction from a provision of national procedural law.

The few Court decisions on the applicable law in cross-border insolvency cases were particularly focussed on the voidness, voidability or unenforceability of legal acts detrimental to all the creditors and the derogation of the lex concursus by the lex causae (Art. 4 sub. 2m and Art. 13 EIR) as well as on the effects of insolvency proceedings on a pending lawsuit (Art. 15 EIR).

The question is whether the upcoming Recast of the European Insolvency Regulation (No. 2015/848) will require a change in Dutch judicial practice. The Recast puts strong emphasis on reorganisation proceedings. Where the wording of the scope of the Recast is somewhat diffuse, the exhaustive list of proceedings covered by the Recast (listed in Annex A) will become a relevant indication of the scope. The Dutch insolvency proceedings to be governed by the Recast are the same as those covered by the current Insolvency Regulation.

According to the wording in the Recitals, the basis for jurisdiction to open main insolvency proceedings against companies and legal persons appears to be more ambiguous than in the current Insolvency Regulation. However, like the current Insolvency Regulation, the relevant article in the Recast presumes that the ‘registered office’ is the basis for presuming jurisdiction with regard to legal persons. This would seem to offer sufficient room for interpretation to continue the ‘third party’ approach often adopted in Dutch judicial practice, with its emphasis on a reference for the determination of a debtor’s COMI that is objectively ascertainable by third parties.