With regard to the interpretation of Art. 3 para 1 of the EIR it is clear that the unanimous jurisprudence of the Supreme Court is easily to overcome the (rebuttable) presumption provided for in Art. 3 para 1 of the EIR, namely that the Member state where a company has its registered office is the appropriate jurisdiction for opening main proceedings. In fact, the Supreme Court in several decisions does not give enough prominence to the company’s registered office as such, considering instead the significance of the place of the actual operation and administration of the company; in essence, the place where the company carries out its proper economic, directive, administrative and organizational activity. In general, the Supreme Court focuses on those objective elements which can be verified and ascertained by third parties in order to ascertain the real COMI position as opposed to the formal location of the registered office. In the light of this, COMI will not be recognized in the place of the registered office where the registered office of a company does not correspond to the proper operational structure of the company itself.
Also in the cases concerning COMI, the jurisprudence of the Supreme Court is fairly unanimous. As mentioned, COMI is to be considered essentially the place where the economic, directive, administrative and organizational activity of the company is actually carried out. In this regard, the cited jurisprudence suggests that a company with its registered office in another member State and which owns immovable property in Italy, should not for that reason alone qualify the Italian courts to open main insolvency proceedings. On the other hand, there is limited authority for the proposition that, in contrast to the above, Italy is the true COMI of a company with its registered office in Luxemburg but where (i) the whole share capital is held by an Italian company, and (ii) the only Director of the Board of Directors from Luxembourg has not been granted any managing powers.
On the basis of a number of Italian decisions on COMI, Italian courts are fully in agreement with the principles on which the EIR has been built, with particular reference to the concept of forum shopping. In this respect, the main decisions of the Supreme Court on this point are aimed at definitively and clearly stating the ‘ascertainable by third parties’ concept of COMI and recognizing the registered office jurisdiction as an easily overcome rebuttable presumption.
Following the filing of a petition of insolvency from a few creditors of an Italian company with the Court of Siena (Italy), the debtor claimed the competence of the Spanish Court to open main proceedings since it had transferred its registered office to Spain, just before the filing of the said petition [Supreme Court, United Sections, 3 October 2011, No. 20144; Supreme Court, United Sections, 1 February 2010, No. 2224; Supreme Court, United Sections, 18 May 2009, No. 11398; Supreme Court 16 February 2006, No. 3368; Supreme Court, United Sections, 25 May 2005, No. 10606; Court of Rome, 21 November 2011 No. 606 / 2011].
Given that the EIR does not contain a definition of COMI, decisions are more at the discretion of the national judges to establish whether or not the COMI of a company corresponds to its registered office.
The Supreme Court denied that the proper forum for opening main proceedings was in Spain, finding a fictitious transfer of the registered office to this member State. Since the actual place of operational and administrative power of the company was based in Italy, the Supreme Court confirmed Italy as the proper jurisdiction for main proceedings – its proper COMI was in Italy.
The above decision confirms the unanimous Italian jurisprudence on Art. 3 of the EIR on the interpretation of the concept of COMI. The case gives a clear example of how the Italian Courts are keen to overcome the presumption of jurisdiction based on the place of the registered office.