New cases applying the Regulation (EU) 2015 848 to insolvency proceedings - by Myriam Mailly

Like its predecessor, the European Insolvency Regulation (Recast) (hereafter ‘EIR (recast)’) sets out rules to (among others) establish which court has jurisdiction to open a crossborder insolvency case. In terms of ‘jurisdiction’, main insolvency proceedings still take place before the courts of the European Member States where the debtors’ centre of main interests (‘COMI’) are situated.

Recent case examples

The EIR (recast) now expressly specifies that in the case of an individual running a business or a professional activity, the debtor’s COMI should be located at the principal place of the business, while in the case of any other individual, the COMI is where that individual usually lives.

A case from Gibraltar (Re Advalorem Value Asset Fund Limited) stressed the importance to determine whether an individual was exercising an independent business or a professional activity under Article 3(1) of the EIR (recast). The question was important as the debtor’s COMI would have been located in Gibraltar if he fell into that category, while his COMI would have been in Spain if he was not.

In another case (R.L. Bezuijen Holding B.V.) from The Netherlands, it was stressed that the fact that a natural debtor was member of the board and a shareholder of a company owning immovable property in another Member State in which lived his family did not suffice to rebut the presumption in favour of his place of habitual residence.

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