REALISATION OF THE EU INSOLVENCY REGULATION [2004] EBLR 73
Realisation of the EU Insolvency Regulation in Germany,
France and The Netherlands
BOB WESSELS*
Introduction
With the introduction of Council Regulation (EC) No 1346/2000 of 29 May 2000
on insolvency proceedings, which came into effect 31 May 2002,1 the European
Union (Denmark excluded) has introduced a legal framework for dealing with crossborder
insolvency proceedings. The Regulation is directly applicable in the Member
States for all insolvency proceedings opened after 31 May 2002.2 All the rules the
Regulation provides for apply directly: the international jurisdiction of a court in a
Member State to open insolvency proceedings, the choice of law (or: private international
law) provisions, the (automatic) recognition of these proceedings in other
Member States and the powers of the `liquidator' to act in the other Member States.
A Member State cannot divert from the contents of the Regulation. Opposite to
another EC measure, a Directive, a Member State has no authority to `implemenť a
Regulation. As Recital (8) to the Regulation puts it: `In order to achieve the aim of
improving the efficiency and effectiveness of insolvency proceedings having crossborder
effects, it is necessary, and appropriate, that the provisions on jurisdiction,
recognition and applicable law in this area should be contained in a Community law
measure which is binding and directly applicable in Member States. Nevertheless, as
far as I am able to oversee, in the UK, Germany, France and in the Netherlands, it
has been recognized that certain measures are necessary to put the Insolvency Regulation
into practical effect, in order to secure its seamless operation in the domestic
legal environment. One can think of measures of a procedural nature, like: should
the request for opening of an insolvency proceeding expressly ask for a main or a
secondary proceeding (Article 3(1) or Article 3(2) Insolvency Regulation (InsReg))?
Or: is the court obliged to look into its international jurisdiction ex officio? or: will a
* Partner, Holland Van Gijzen Attorneys at law, Rotterdam, The Netherlands; Professor, Business
Law `Vrije' University, Amsterdam; Commerzbank Foundation Visiting Professor, Institute for Law
and Finance, Frankfurt, Germany. This paper was presented to Insol International Academics meeting
on `Multinational Insolvency Proceedings ­ Cooperation among Nations', Las Vegas, Nevada, USA,
20­21 Sept 2003.
1 Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, Official Journal
L 160 of 30 June 2000.
2 See Moss and Smith, `Commentary on Council Regulation 1346/2000 on Insolvency Proceedings',
in: G Moss, IF Fletcher and S Isaacs (eds), The EC Regulation on Insolvency Proceedings ­ A
Commentary and Annotated Guide, Oxford University Press (2002), and B Wessels, European Union
Regulation on Insolvency Proceedings: An Introductory Analysis, published by American Bankruptcy
Institute (2003).
74 BOB WESSELS
foreign liquidator, in submitting his requests in the proceedings of another Member
State need mandatory administrative support (eg, by a clerk or court official)? In
some cases the better coordination of main and secondary proceedings has to be
facilitated. Can a liquidator in main proceedings seek a stay (as meant in Article
33 InsReg) in a secondary proceeding which is pending in another Member State?
May he require to terminate this stay (and the necessity to determine which court in
the other Member State is authorised to deal with this request, the possibility of an
appeal, and the question who is eligible to make an appeal)? And what procedural
additions have to be in place with regard to the application for the ending of a secondary
proceeding (Article 34 InsReg), to convert earlier proceedings (Article 37
InsReg), to issue the request concerning preservation measures (Article 38 InsReg),
or the proposal for a rescue plan by the liquidator (Article 34 InsReg), in case, eg,
in domestic law only a debtor himself is allowed to issue said proposal. Other tiny
gaps between the Regulation's contents and national legislation can be detected in
specific details of publications or registrations, eg, the method and contents with
regard to registration in a national Bankruptcy register of a foreign proceeding, or
which register to use when these registers are not centralised. The same goes for
method and content of registration of certain facts with regard to third party rights,
for instance the necessity of adaptation of a country's national Trade Register or the
determination of the sources of publications (official gazette/newspaper) and the languages
these publications have to be fulfilled in. In short, the list of legal measures
that aim at seamless compatibility between the Regulation on the one hand, and a
Member State's domestic law on the other, may seem endless.
Germany, France, The Netherlands
In 1999, the new Insolvenzordnung in Germany came into being. The original proposal
to insert provisions on international insolvency law in this Act was taken
out of the overall proposals for renewal of German insolvency law by the German
Republic's parliament (`Bundestag') in 1995. The approach was taken at that time to
await the introduction of (what now is) the EU Insolvency Regulation. After its entry
into force of the EU Regulation only ten months later, on 20 March 2003, the new
German international insolvency law took effect.3 It is an autonomous legal domain
for international insolvency law, fundamentally based on the EU Regulation's basics
and system and inserted as Part XI (International Insolvency Law, § 335­§ 358) in
Germany's Insolvenzordnung (InsO).4 Furthermore, as a second part of the renewed
legislation Article 102 Insolvenzordnung has been drastically changed. It presently
3 See for its text, including a 17-page Elucidation (all in German language): Deutscher Bundestag,
15. Wahlperiode, Drucksache 15­16 (25 Oct 2002) (<www.bmj.bund.de>).
4 See B Wessels, `Current developments Towards International Insolvency Law', which article deals
with these developments in Germany, Austria, Spain and Poland. Paper presented at Insol International
Academics meeting on `Comparative Approaches to Insolvency', Las Vegas, Nevada, USA, 20­21 Sept
2003, in International Insolvency Review (forthcoming).
REALISATION OF THE EU INSOLVENCY REGULATION [2004] EBLR 75
carries as a heading `Realization' (`Durchführung')5 of the Insolvency Regulation
and contains eleven provisions.6
In France, the insolvency legislation itself has not been altered. The French Ministry
of Justice has issued a Circulaire relative  léntrée en vigueur du rglement
no. 1346/2000 du mai 2000 relatif aux procédures ďinsolvabilité.7 This `Circulaire'
with regard to the Insolvency Proceeding is a twenty-page letter addressing the key
points of the Regulation, providing clarifications with regard to its width. Although
it outlines and introduces in quite some detail the contents of the Regulation, it too
contains proposals for solutions for certain difficulties in the Regulation's applicability
in France. The latter are expressly brought forward under the condition of the
sovereign nature of the Regulation.8
March 2003 may be regarded as a fruitful month for international insolvency
law, as in addition to Germany and France, in the Netherlands a renewed proposal
for an Act for Realization of the Insolvency Regulation has been sent to the Dutch
parliament.9 The Dutch proposal contains some fifteen Articles.10
In this Article I will describe some of the most notable issues in the three aforementioned
documents.11 It may be noted that the issues I touch upon are only a selection
of all matters at issue. Where appropriate some comparisons will be made.
5 One should be aware that Germany, France and the Netherlands for the material I present here
do not provide translations into English. The ones I provide are my own, eg, `Durchführung' may also
reflect notions like `realisation' or `administration'; no responsibility is accepted for any discrepancies
with authentic texts. The foreign texts referred to on websites have been lastly visited 28 Aug 2003.
6 For literature: Liersch, Deutsches Internationales Insolvenzrecht (German international Insolvency
Law), NZI, Heft 6/2003, p 302.
7 See: Bulletin Officiel Du Ministére de la Justice no 89 (1er janvier ­ 31 mars 2003; CIV 2003­05
D4/17-03-2003 NOR: JUSC0320134C) at <www.justice.gouv.fr/actua/do/dacs89c.htm>.
8 For literature: Dupoux, Measures taken in France, in: Eurofenix, Newsletter Insol Europe, Summer
2003, p. 10. See for a detailed account of the application of the EU Insolvency Regulation in relationships
between Germany and France: Niggemann and Blenske, Die Auswirkungen der Verordnung (EG) Nr.
1346/2000 auf den deutsch­französischen Rechtsverkehr (`The Effects of the EU Insolency Regulation
on German­French Judicial Matters'), NZI, Heft 9/2003, p 471ff.
9 The original draft-Act (Parliamentary file 28 654) had been issued to Parliament in Oct 2002. The
Act followed a Circulaire of the Dutch Ministery of Justice, which was addressed to (mainly) the associations
of judges and of legal practitioners. The purpose of the Circulaire is merely the same as explained
for the French Circulaire. Those reading the Dutch language may visit <www.overheid.nl>.
10 Those fifteen alter especially the provisions in the Bankruptcy Act with regard to liquidation
(`faillissemenť). Some other ten provisions apply these same renewals to one of the other insolvency
proceeding the Act contains: `surseance van betaling' (moratorium or reorganisation) and `schuldsaneringsregeling
natuurlijke personen' (fresh start for natural person-debtor).
11 It should be noted that, already before 31 May 2002, in the UK a set of five statury instuments
has been adopted to ensure compatibility between UK law and practice and the Regulation, see Moss
et al, p 332.
76 BOB WESSELS
International Jurisdiction
In the Netherlands the request to open insolvency proceedings12 should provide such
information that the court is able to judge whether it has jurisdiction as meant in
Article 3 InsReg (Article 4(4) Dutch draft). In general the view is taken that this
information can be brief. For legal persons, mention should be made of its registered
office, while this results in the (rebuttable) presumption that this is the place of the
debtor's centre of main interest (COMI). Where this presumption does not help the
applicant ­ because the registered office is not in the Netherlands ­ it is important
that the applicant provides information to verify whether the debtor possesses an
establishment as meant in Article 2(h) InsReg.13 The obligation to pose aforementioned
information is limited to the EU territory. In a case that does not involve the
application of the InsReg, an applicant can limit himself to provide information that
results in that conclusion. In that case the applicant has to further information with
regard to the jurisdiction of the court when, eg, the debtor or the court do request
so. It should be noted that the applicants' duty (to provide sufficient information)
is not sanctioned.14
When outside of the Netherlands a main insolvency proceeding has been opened,
Article 6(1) of the Dutch draft provides that the registrar (`griffier') of the court
invites the foreign liquidator without delay to present his views with regard to the
request for opening of a secondary proceeding within a period to be decided by the
court. The views of the liquidator of the foreign main proceedings are rightly valued
as useful for the coordination between both proceedings.
A hotly debated question in Dutch literature is whether, and if yes, to what extent,
the judge opening the insolvency proceeding should in his judgment explicitly account
for the type of proceeding opened (main or secondary proceedings). Originally
in the Netherlands the legislator took the view that it was not necessary for the
court to expressly provide any information referring to its international jurisdiction
supporting his decision, laid down in the judgment, which opened an insolvency
proceeding. This judgment could have the type of proceedings (main or secondary)
unmentioned. The position was taken that the Regulation would not allow for
the recognition of a judgment in another Member State by making it dependent of
the stipulation that the judgment expressly disclosed the type of proceeding. Quite
12 Only the French Circulaire provides guidance in detecting which nature of proceedings qualify
as `collective insolvency proceedings which entail the partial of total divestment of a debtor and the
appointment of a liquidator' and therefore are subject of the scope of the Insolvency Regulation, eg, the
proceeding with regard to director's liability for not paying social insurance contributions is regarded
as not being based on `insolvency'.
13 The French Circulaire (I.2.2.1) explains that a simple bank account and the existence of an isolated
asset does not constitute an `establishmenť.
14 In the Netherlands to be able to request for the opening of an insolvency proceeding one needs
the assistance of a procurator litis (`procureur'), which applies eg, in case a foreign liquidator in the
main proceedings requests for a stay of the liquidation in a secondary proceedings in the Netherlands or
the termination of that stay (Art 33(1) InsReg).
REALISATION OF THE EU INSOLVENCY REGULATION [2004] EBLR 77
rightly in literature it has been stated that a duty to account for certain specifics in a
judgment can derive of a country's Constitution. Furthermore, it has been brought
forward that the presumption of the Regulation is that a judge ex officio has to
verify whether the Regulation applies and what type of proceeding is opened. This
presumption one recognises also in the provisions with regard to publication and registration
in a public register (Article 21 and Article 22 InsReg).15 Although the Dutch
Minister of Justice is not convinced by these arguments,16 the renewed Article 6 lid 4
Dutch draft now contains the opposite. When a Dutch judge derives its international
jurisdiction from the Insolvency Regulation, the judgment opening the insolvency
proceeding should state whether it concerns a main or a secondary proceeding.
The provision as it reads now has been introduced to clarify ­ also (to judges) in
other countries ­ the consequences of a judgment of a Dutch court, because these
consequences are so different (main proceeding with `universaľ effect; secondary
proceeding only with `territoriaľ effect). The provision, too, aims to prevent that a
court in another Member State has to do research into what a Dutch court actually
has decided.
Both the German and the French Minister of Justice have taken this latter view, as
the UK had done, from the first instance. Article 102 § 217 Insolvenzordnung (InsO)
says: when it can be assumed that assets of the debtor are located in another Member
State (than Germany), the judgment with regard to opening of the insolvency proceedings
should summarily deal with the actual facts and the judicial considerations
that lead to the international jurisdiction of the German court according to Article 3
InsReg. The French Circulaire (under I.2.3) stresses the importance of describing
expressly the bases of the courťs international jurisdiction (main of secondary).
It holds as the ideal situation that the jurisdictional criteria will be discussed and
argued during the hearing. The Circulaire explains too that French internal law
may not hinder the application of the Regulation. Therefore the specific French
provision that whenever the registered office is transferred within six months prior
to the opening of the insolvency proceedings, the court of the previous registered
office will have jurisdiction, cannot be applied. Nevertheless, the Circulaire reserves
its applicability in cases of fraud (I.2.1). This seems in contrast with what the EU
Insolvency Regulation would allow, unless the statement can be seen as a starting
point for the interpretation to rebut the presumption of Article 3 EU InsReg that the
place of the registered office of a company or a legal person shall be presumed to
be the centre of its main interests.
15 See Polak/Wessels X, Internationaal insolventierecht (International insolvency law), 2003, par
10415.
16 It should be noted that the German Elucidation (p 15) holds that the Insolvency Regulation indeed
presumes that every court has to prove its own international jurisdiction.
17 Art 102 § 1 deals with Germany's domestic competence of a court.
78 BOB WESSELS
Conflict of International Jurisdiction
Another strongly debated issue in the Netherlands is the one on the possibility of
conflict of jurisdiction. As there is only one COMI of a debtor the Dutch Minister
takes the view that according to Recital 22 of the Regulation `... recognition of judgments
delivered by the courts of the Member States should be based on the principle
of mutual trust.' To that end, grounds for non-recognition should be reduced to the
minimum necessary. This is also the basis on which any dispute should be resolved
where the courts of two Member States both claim competence to open the main
insolvency proceedings. The decision of the first court to open proceedings should
be recognised in the other Member States without those Member States having the
power to scrutinise the courťs decision'. The Dutch Minister of Justice holds that
the cited Recital makes clear that the judgment of a court in another Member State,
opening an insolvency proceeding, may not be tested: every other judge in a Member
State has to abstain from opening (a `seconď) `main' insolvency proceedings.
In Germany this rationale has lead to a material provision in Article 102 § 3 InsO,
under the heading: To prevent conflict of jurisdiction. The German legislator aims
to provide more precision to the `principle of mutual trusť.
Article 102 § 3 seeks to prevent two main categories of conflict of jurisdiction,
positive conflict (Section 1) and negative conflict (Section 2). Article 102 § 3(1)
determines that in case a court of another Member State has opened main proceedings,
a request to open such main proceedings for a German court is to be disallowed,
as long as the main proceedings in the other Member State are pending. The
German legislator strongly stresses that German courts have to respect the judgment,
which opens the insolvency proceeding without materially testing this judgment. In
case the German court is unaware of the opening of main proceedings in another
Member State, Article 102 § 3(1) continues to determine that main proceedings
opened in Germany will not be continued. Article 102 § 3(1) furthermore authorizes
the foreign liquidator to claim before the German court the priority of his proceedings.
Article 102 § 3(2) seeks to avoid a negative conflict of jurisdiction by providing
that in case a court of a Member State has denied its international jurisdiction
according to Article 3 InsReg, because courts in Germany will have jurisdiction, the
German court is not allowed to reject the opening of the insolvency proceedings on
the grounds that a court in another Member State has jurisdiction. The German court
will of course be allowed to deny its jurisdiction because another court of another
Member State seems to be the court with international jurisdiction.
In case the German court ­ unaware of the opening of main proceedings in
another Member State ­ has opened main proceedings and according to Article 102
§ 3(1) is not allowed to continue these proceedings, the German court ex officio
institutes the proceeding in the favour of the foreign court, after having heard the
German liquidator and the debtor. Will indeed these proceedings be set up, every
creditor has the right to object (Article 102 § 4(1)). The objection could be that
instituting proceedings abroad influences the right to start secondary proceedings
in Germany. The German legislator recognises that this method of instituting pro-
REALISATION OF THE EU INSOLVENCY REGULATION [2004] EBLR 79
ceedings elsewhere does not have retroactive effect and harmonises the (unilateral
legal) effects of the foreign main proceedings with the fall of the German proceeding.
Article 102 § 4(2) states that legal effects of the German proceeding, already
in force and not limited to the duration of the proceedings, will stay in force when
they conflict with legal effects of the foreign main proceeding as far as they influence
Germany. This rule also applies to legal acts of the German liquidator or acts
from third parties against him. Rather unique seems to me Article 102 § 4(3) by
creating a duty for the German court to communicate with the court in the other
Member State. Before the aforementioned method of instituting of proceedings the
German court informs the foreign court, which supervises the main proceedings. The
information should contain (i) the way the proceeding to be instituted has become
known, (ii) which publications and registrations already have been made, and (iii)
who the liquidator is. The decision contains a reference to the foreign court, which
has to be named. This court will receive a transcript. This arrangement has been
put in place to secure the position of the foreign liquidator (to take measures that
can not wait) and to safeguard that the debtor will not be reinstated in his rights to
manage and dispose of his assets in Germany. The German liquidator has to hand
over these assets to the foreign liquidator or secure these on his behalf.
Publications
The Dutch Draft and the German Article 102 do not contain any specifics with
regard to the evidence abroad of the liquidator's appointment (Article 19 InsReg).
The French Circulaire (II.4.1) requires a copy of the appointment, certified by an
authority (`une autorité'), who may be the registrar. It is suggested that the opening
judgment in French should specify the tasks of the appointed liquidator. It is stated
that the liquidator carries the burden of proof of the contents of his local law (lex
concursus), by way of a written statement (`certificat de coutume') or an equivalent
notice, eg, containing translations provisions of the law.
At the request of a foreign liquidator of a main or a secondary proceeding in
the Netherlands, the registrar (`griffier') of the court in the Hague notifies without
delay the information as meant in Article 21 InsReg. The data has to be provided to
the Registrar in Dutch, English, German or French. One may expect to use sworn
translations, although the Dutch draft is silent on this issue. According to Article
23 InsReg the costs of publication will be borne by the foreign liquidator. Article
19b Dutch draft deals with the publication in a public register (as provided for in
Article 22 InsReg). It is a centralised publication in the Insolvency register of the
Court in The Hague.
In Germany the request to make public the information (ex Article 21 InsReg)
has to be provided by the foreign liquidator to the German court, which is the court
that has jurisdiction as meant in § 1 (in general the German court of the district
where the debtor has his COMI). The Court is allowed to ask for a translation to
be provided by a sworn translator. When the debtor possesses an establishment in
80 BOB WESSELS
Germany the public announcements follow ex officio by the court. Both the Netherlands
and Germany make use of the possibility ex Article 21(2) InsReg to require
mandatory publication when the debtor possesses an establishment (Article 2(h)
InsReg) in the respective countries. The publication of data in public registers follow
in Germany the same course (§ 6(1)). In France the explanation in the Circulaire
takes the same view. The Dutch legislator on the other hand is of the opinion that
registrations in a public register directly flow from Article 22 InsReg. In Germany
Article 102 § 6(2) provides some alignment: form and content of the registrations
will be adapted according to German law, which includes substitution of unknown
foreign registrations. When requests for notification or registration are directed to the
incompetent court in Germany, this court has a duty to forward, without delay, the
request to the court that indeed has jurisdiction, and a duty to inform the applicant.
Article 102 § 7 provides for an appeal procedure when a request for notification of
registration is denied.
Article 21(1) and Article 22(1) InsReg provide that the liquidator `may' request
the publication and the registration. The Circulaire reads these provisions in the way
that the registrar (`greffier') of the French court is not allowed to reject the request
for publication from a foreign liquidator. The essentials of the opening judgments
should be published, including the fact whether the proceeding is a main or a secondary
proceeding.
While exercising the rights of the creditors in the main proceeding as provided
for in Article 32 InsReg, the Circulaire disallows creditors from lodging their claim
in the secondary proceedings if the liquidator of the main proceedings has done so.
He is presumed to be empowered by the creditors.
Rescue Plan in Secondary Proceedings
Article 34 InsReg, second sentence, requires that in secondary insolvency proceedings
a rescue plan, a composition or a comparable measure (without liquidation) shall not
become final without the consent of the liquidator in the main proceedings; failing
his agreement, however, it may become final if the financial interests of the creditors
in the main proceedings are not affected by the measure proposed. Where this
provision would not provide the authority of the court in the Netherlands to approve
of such a rescue plan (the approval of the court is a mandatory requirement), it is
necessary to have a rule in place that gives the court power to act in case the foreign
liquidator although not refusing his consent, would not approve. According to
Article 153 of the Dutch draft the court may withhold its approval when the foreign
liquidator withholds his consent, unless the court is of the opinion that the plan does
not affect the financial interests of the creditors in the main proceedings. Article
172a Dutch draft confirms what already is contained in Article 34(1) InsReg, the
authority of the foreign liquidator to issue directly a rescue plan in these secondary
provisions. Before 31 May 2003, in the Netherlands only the debtor was given this
opportunity.
REALISATION OF THE EU INSOLVENCY REGULATION [2004] EBLR 81
The German legislator aims to avoid the troublesome situation that a creditor
who did not give his consent would lodge his claim in the main proceedings,
where a creditor who did give his consent but whose claim has not been satisfied
in the secondary proceeding ­ his claim is regarded as a natural obligation
(`Naturalobligation')18 ­ could not lodge the unsatisfied part of his claim in the main
proceedings. For this reason § 9 says that when a rescue plan leads to any restriction
of the rights of the creditors, the court only may approve the plan when all creditors
have given their consent to the plan. The wording mirrors Article 34(2) InsReg, in an
aim to align German law. The German provision of Article 102 § 10 provides that
during the stay of the process of liquidation in the secondary proceedings (Article 33
InsReg), which can be requested by the foreign liquidator in the main proceedings,
the creditors with a right of pledge (`Absonderungsrechť) receive interest.
Article 247d Dutch draft builds in the procedural requirements necessary to be
fulfilled when according to Article 37 InsReg a foreign liquidator wishes to convert
previously opened insolvency proceedings into a proceeding that aims at liquidation.
The Circulaire recognizes this possibility without further suggestions. Probably
French law is already tailored to allow for this conversion.
Information to the Creditors
In addition to the quite detailed provisions of providing information to all creditors
abroad (Article 40­42 InsReg) in Germany § 11 obliges that next to information
with regard to the judgment opening the insolvency proceedings, creditors who
have their habitual residences, domiciles or registered offices elsewhere in the EC
receive information on all the consequences of not lodging a claim in time. Article
40 InsReg provides that the information is given by the court or by the liquidator.
Article102 § 11 provides that the court can instruct the liquidator to do so. In
France, the Circulaire (II.2.1.1) reads Article 40 InsReg (duty to inform known
creditors) as a duty to inform all creditors in all Member States; this duty also lays
on a French liquidator who is appointed in a secondary proceeding. Therefore he
will have to obtain a list of all creditors of the company or legal person (`personne
morale') including those situated in other Member States, even in cases when their
claims do not relate to the activity of the company in the state the court of which
has opened the proceedings. The Circulaire specifies that the information given by
the liquidator in accordance with Articles 40­42 InsReg must contain particular
matters specified by the French insolvency rules. The French liquidator has the
right to ask foreign creditors to translate their proof of claims, including related
supporting documents.
Although a main insolvency proceeding opened in another Member State does not
affect the rights in rem of assets located abroad (Article 5 InsReg),19 the Circulaire
18 A moral duty of the debtor to pay the discharge of his debt to the creditor. When he would do so
the idea is that this payment is legally valid and is not to be seen as a gift.
19 See Wessels, `The Secured Creditor in Cross-border Finance Transactions Under the EU Insol-
82 BOB WESSELS
qualifies it as prudent to inform creditors with rights in rem as they are also under
the obligation to give notice with regard to their claims. A failure to duly give notice
of their claim cannot, however, prejudice their rights in rem.20
Recognition and Enforceability of Related Judgments
As indicated earlier, both the Dutch, German and French rules provided for a countless
number of other provisions aiming to alter domestic law and make it compatible
with the EU Insolvency Regulation. The countries take the same approach to
insolvency-related judgments: Article 5a of the Dutch Act to Realize the Brussels
2003 Regulation on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters (`Uitvoeringswet EG-executieverordening') is declared applicable
by analogy to all judgments as meant in Article 25(1) InsReg. The aim of
the provision is to create a seamless fit between the aforementioned Brussels 2003
Regulation and the Insolvency Regulation. Article 102 § 8 Insolvenzordnung makes
the same type of connection between the two, as does the Circulaire (V).
Conclusion
In this Article I have dealt with a few of the compatibility issues Germany, France and
the Netherlands21 took into account in order to have the EU Insolvency Regulation
operate efficiently. Detailed legislation in the three countries provides a better
knitting together of the Regulation and domestic (procedural) insolvency law. It is
quite surprising to see that in the respective countries some of the issues I posed in
the beginning of this Article are taken care of in the law of all discussed countries,
some of them only in two or one of them and some are still open. In the insolvency
procedural practice most of the times the devil is in the detail. Here, too, it is notable
that eg, in the issue of publication and registration which all three countries address,
one sees differences (in courts authorised, in languages to use, in form of translations,
in type of publications). In cases where domestic legislation is silent, future court
cases may fill in gaps. Judges may take guidance in their decisions of the rationale of
the Regulation, especially contained in Recitals (2) and (4) of the Regulation, in that
the proper functioning of the internal market requires that cross-border insolvency
vency Regulation', Journal of International Banking Law and Regulation 2003, Volume 18, Issue 3,
pp 135ff.
20 In French proceedings the inconsiderate creditor who possesses a right in rem to which an asset
situated in another Member State is subjected, loses his right for distribution on the assets of the debtor
company; he may however exercise his rights on the assets in the Member State where these assets are
situated. The French legal rule here cannot affect the position provided for in Art 5 InsReg. The same
is true for the Netherlands, although the Dutch draft is silent here.
21 The Dutch Act came into effect 15 Nov 2003. No alterations to the draft-text have been made.
REALISATION OF THE EU INSOLVENCY REGULATION [2004] EBLR 83
proceedings should operate efficiently and effectively, and in the prevention of
`forum shopping', being the necessity to avoid incentives for the parties to transfer
assets or judicial proceedings from one Member State to another, seeking to obtain a
more favourable legal position.