Page 396 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

secures the effectiveness of the adopted measures in the territory of the EU. The
regulation of these three facets is inspired by the principle of mitigated universalism.

To start with, the Regulation grants exclusive jurisdiction to open insolvency

and pre-insolvency proceedings to the courts of the Member State where the ailing party
has its Centre of Main Interests (COMI). This criterion is defined as the place where
the debtor conducts the administration of its interests on a regular basis and which is

ascertainable by third parties. Pursuant to the universalist model, the general rule is
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that the debtor will be subject to a single set of proceedings in the EU territory and will

aim to encompass all the debtor’s assets. Similarly, the law of the State of the opening
of the proceedings (lex concursus) will determine all the effects of the pre-insolvent or
insolvent status, both procedural and substantive, on the persons and legal relations

concerned. These include matters such as the respective powers of the debtor and the
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insolvency practitioner; the conditions under which set-offs may be invoked; the effects
of insolvency proceedings on current contracts to which the debtor is party; the effects

of the insolvency proceedings on proceedings brought by individual creditors; the rules
governing the distribution of proceeds from the realisation of assets and the ranking of
claims; the creditors’ rights after the closure of insolvency proceedings; and the rules

relating to the voidness, voidability or unenforceability of legal acts detrimental to the
general body of creditors.

Importantly, a debtor company may transfer its COMI to a different Member
State prior to the lodging of an application to open insolvency proceedings. This
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requires the debtor to establish its head office and independent management in the
Member State of destination, recruit legal and financial advisors there, transfer its books

to and open bank accounts in the new location, conduct all business activities from there
whilst at the same time terminating existing contracts under the law of the previous
location, carry out board meetings and restructuring negotiations in the new location,

register as a foreign company and for tax purposes in the new location and duly notify

24 Article 3 EIR recast.
25 Article 7 EIR recast.
26 C-396/09 Interedil Srl ECLI:EU:C:2011:671; Case C-1/04 Staubitz-Schreiber ECLI:EU:C:2006:39

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